
Oi' o ' 













Or , o !♦ o 




A^ 



^ v*^ /^Wa*- ^-^ c^y ^^ 









.^ 








AN INTRODUCTORY LECTURE, 



DELIVBEED BEFORE THE 



LAW CLASS OF COLUMBIA COLLEGE, 

NEW YORK, 

ON MONDAY, NOVEMBER 1, 1858, 
BY THEODORE W. DWIGHT, 

PKOFESSOE OF LAW, &c. 



OUR MUNICIPAL LAW, 



AND THE 



BEST MODE OF ACQUIRING A KNOWLEDGE OF IT. 



Gentlemen of the Law Class : 

The subject to wliich we invite your attention is 
tlie science of Municipal Law. This science, althougli 
special in its charactei', has relations to law in gene- 
ral, and cannot be comprehensively studied without 
tracing those relations or connections. Most writers 
upon special subjects of Jurisprudence, as, for exam- 
ple, Blackstone in his commentaries upon our Muni- 
cipal Law, or Hooker in his "Ecclesiastical Polity of 
England," introduce theu' theme to the reader by 
a general disquisition upon law in the abstract — upon 
the divine law as revealed in the Bible, upon the law 
of nature and of reason — and thus deduce their own 
topic from the wider principle. Hooker, by a bold 
personification, represents all nature as actually ren- 
dering a voluntary and a glad devotion to the 
Supreme Lawgiver, as it yields an unswerving obedi- 
ence to appointed laws. "What if," says he, "nature 



ME. DWIGHt's address. 



should leave for a while tlie observation of lier own 
laws; if tlie frame of that heavenly arch erected 
over our heads should loo-sen and dissolve itself^ if 
celestial spheres should forget their wonted motions, 
and tm-n themselves any way, as it might happen ; if 
the prince of the lights of Heaven, which now as a 
giant doth run his unwearied course, should through 
a languishing faintness begin to stand and to rest 
himself; if the moon should wander from her beaten 
way, the winds breathe out their last gasp, and the 
clouds yield no rain — ^if all this present joyous obedi- 
ence of nature should be intermitted, what would 
become of man himself," &>q,. He then proceeds to 
speak of the law of reason, of the law of nations and 
of civil society, until he comes by easy gradations to 
his immediate subject. 

Such a view would carry us too far from the theme 
immediately before us, and, while we recognize the 
connection thus indicated, we will at once apply our- 
selves to our own municipal law. 

By one, the term law is briefly defined to be " a 
rule of action;" by another, it is said, "that which doth 
assign to each thing the kind of work, that which 
doth moderate the force and power, that which 
appoints the form and measure of working, we call 
law."* 

* Hooker's Ecclesiastical Polity. 



MR. DWIGHt's address. 



By municipal law we mean the rule that governs 
us in our civil conduct, under the fundamental law of 
the State. This is divided into common and statute 
law ; the fii'st rests upon general usage as its basis, 
and is ascertained by judicial decision ; the other is 
directly originated by the Legislature. 

I shall not attempt on this occasion to give a de- 
tailed account of the principles of our Municipal law. 
In the short hour allotted to me, I could present 
but a barren outline of its provisions. I shall have 
accomplished my purpose, if I sketch its origin, 
some of its vital, distinctive principles, the mode of 
its growth, and its present condition. 

It is to be stated at the outset that Americans did 
not lay the foundations of American Jurisprudence. 
These were built by other hands. Our forefathers 
found the common law complete in its essential parts. 
They adopted it without shrewd inquiry into its 
origin. They even claimed it as an indefeasible right 
under the sacred law of descent. Whether induced 
to leave their homes by persecution, or allured by 
the persuasive voice of ambition, or charmed by the 
prospects of immediate wealth — whether they came 
with their fortunes or destitute of means — whatever 
else they brought with them, or whatever they aban- 
doned, they claimed the law of England as their own ; 
as part of their own persons ; as inhering essentially 



ME. DWIGHt's address. 



in tlie very notion of their property. The very term 
was, doubtless, dear to them. It was the common law. 
It was like the common sun that lighted them, the 
common air they breathed. They no more thought 
of criticising or questioning the legitimacy of the 
one than of the other. Here, without class distinc- 
tions, it sheltered the evil and the good. It had in 
part originated in the forest; it protected the hardy 
sons of our forest, expanded with their growth, and 
still continued to govern them as their once uncul- 
tivated wastes were organized into States and blos- 
somed with imperial cities. 

The Roman law, which is the basis of the legal 
codes of Continental Europe, had been termed the 
civil law. It treated the individual as an incident to 
the State, and regarded him in the main as a citi2;en. 
To it we owe our city corporations, and our now 
sacred right of local self-government. The common 
law, however, regards the person more strictly in his 
individual nature, and bears proudly on its front per- 
sonal freedom, considering the State as the means for 
individual protection and development. The flame 
of liberty which we can perceive, through the vistas 
of history, gleaming from the morasses of the Ger- 
man forests, was carried to England, where it burned 
with a purer hght. No rude blast was allowed to 
quench its virgin fire. The early Englishmen cov- 



5 

ered it, while it kindled, with their shields, till Magna 
Charta, in every line, grew ruddy with its glow. 

The exact source of the common law no one can 
trace. It was formed at the confluence of many 
separate streams. Undoubtedly the Roman law con- 
tributed largely to its formation. Mr. Spence has 
shown this at large, and with elaborate research, in 
his work called " the Equitable Jurisdiction of the 
Court of Chancery."* 

* This point is still debated among law writers. If, however, any one 
will examine Bracton's very early work with care, comparing it closely 
with parallel passages in the Institutes of Justinian, he will be greatly im- 
pressed with the fact that the arrangement of subjects, collocation of passages, 
and the precise language of Justinian are reproduced by the later author. 
He will be almost persuaded that he is reading " The Institutes." How Lord 
Campbell (Lives of the Ch. Justices, vol. I., p. 63) can say that Bracton uses 
the civil law only for illustration, I cannot conceive. Although he was 
a civilian, yet he does not write as though his statements were new, but pro- 
pounds them as accepted rules. However, Cooper, in his work on " The 
Public Records," vol. II., p. 401, says, that there are two distinct recensions 
of Bracton, in one of which many of the passages borrowed from the civil law 
do not appear. " The laws of all nations are, doubtless, raised out of the ashes 
of the civil law," per Lord Holt, 12 Mod. R., 483. 

Still, it is fair to say, that the Germans, Anglo-Saxons and the English, ia 
succession, have, in many instances, shown a spirit of hostility to the Roman 
law. Florus states, that when the Roman commander, Varus, had the control 
of the German provinces, he endeavored to govern barbarians by the civil 
law, which they regarded as harsher than his arms. And while he was citing 
them before his tribunals, they attacked liis court and destroyed his legions. 
Having taken one of the lawyers a prisoner, after cutting out his tongue 
they sewed up his mouth, crying, " Now, viper, cease to hiss" — vipera sibi- 
lare desiste. Book IV., cap. 12. 

Whea the Saxons first attacked England, they, like the other barba- 
rians, had a great aversion to towns, and suffered those who were engaged 
in trade to carry on their employment undisturbed. In the country, however, 
they appear to have seized the whole of the land, and to have driven the for- 
mer owners into exile, or to have reduced them into slavery. Their complete 



6 MR. DWIGHTB ADDEESS. 

The Anglo-Saxons contributed invaluable results ; 
above all, in tlie respect for personal freedom, and in 
tlie love of order, and perhaps in a rudimentary trial 
by jury. It may be that relics of the old Briton 
law may remain,* though Gibbon's remark is unques- 
tionably true, "that before the irruption of the Saxons, 
England had been moulded into the elegant and ser- 
vile form of a Roman province," while some of Rome's 
greatest jurists sat there in the seat of judgment 
With other points of resemblance between the devel- 
opment of England and the United States, they are 
strikingly alike in this respect, viz. : that each is a 
composite nation. In the beginning, England was a 
prize for the valiant; in later times, an asylum for 
the persecuted and the outcast. "All such have 
crossed the sea, and made the great island their coun- 
try. Thus England has thriven on misfortunes, and 
grown great out of ruins." These various races who 
have struggled there for the mastery, or have resorted 

subjugation of the natives appears fi'om the fact, that their laws are v/ritten 
in their own language. (See Spence's Origin of Laws.) Eyery reader of 
English history will remember that, after the Norman conquest, the people 
continually demanded the restoration of the old Anglo-Saxon laws. This 
feeling may have been carried too far, in some respects. See Bell's Comment- 
aries, 1, 11. "That dread of the arbitrary maxims of the civil law, which 
has been the distinction and the boast of England, has perhaps produced a 
bad eifect in matters of municipal regulation, though of invaluable benefit in 
the formation of the constitution." 

* " Questionless, the Saxons made a mixture of the British customs with 
their own." — Seldenh notes to Fortescue, de Laudibus legum Ajiglia, chap. 11 . 



ME. DWIGHt's ADDEESS. 



thither as a refuge, have had a powerful effect on the 
development of the law. Like the composition of 
forces in mechanics, the combination of the contend- 
ing powers has contributed to a resultant force in a 
new direction. 

Thus, while we may admit that the English law 
incorporated into itself many of the doctrines of the 
civil jurisprudence of Rome, and v/hile it may have 
no claim to compare with that splendid code for 
scientific precision, breadth and comprehensiveness of 
view, and while the English language may not express 
legal formulse with the rigorous accuracy of the Latin 
tongue, yet we may with pride remember that this 
plain common law contained within itself that poten- 
tial and vital element so lamentabl}'^ deficient in the 
former — legal protection for individual freedom. " The 
political law of Rome is moulded," says one, " in its 
later forms in an oriental seraglio, and was fit only 
for a debased and servile population." 

Although the early English law writer, Bracton, 
copied in his treatise that courtly and submissive 
maxim of the Roman code, " what pleases the prince 
has the force of law,"* it did not become an admitted 

* Book 3d of Actions, chap. 9. Although Bracton admits this maxim, 
yet in a fine passage in the same connection he indicates the principles 
which ought to govern the conduct of the King. " The King ought," 
he says, " to exercise the power of law (which is the power of God), as if 
he were the yicar and minister of God on earth ; the power of doing 



ME. DWIGHt's ADDEESS. 



principle in jurisprudence. This exotic could not 
be made to flourish upon British soil. 

The true theory of trial by jury is peculiar to the 
common law. This mode of trial was not created by 
the great charter, but was secured by it. It was so 
well known then as to be described by mere formu- 
lary words. The freeman was not to forfeit his 

wrong belongs to the Devil, and not to God. Therefore, while he acts justly, 
he is the vicar of the Eternal King ; but, when he turns aside to do wrong, he 
is the minister of the Devil. Nothing is so appropriate to imperial authority 
as to rule according to law, and to submit to the law is greater than it is to 
govern. He should pay a proper respect to the law, for it is that alone which 
made him King. He is no King whose will rules and not law. Let him be 
just as well as merciful, and let his eyes so precede his footsteps that his judg- 
ment shall not vacillate from want of knowledge, or his merciful nature be 
deceived from want of circumspection," &c., &c. The whole section is worthy 
of perusal. Still he furnishes no remedy for the King's wrong acts, for he 
says in another place, " As, however, no writ can be directed to him, his sub- 
jects can only petition that he will correct and change his evil course, which 
if he will not do, it is sufficient punishment that he will hereafter meet the 
Lord as his judge. Let no one presume to dispute his acts, much less to 
oppose him." 

[Although Bracton, according, to Lord Coke, lived when Magna Charta was 
granted, yet it is not much dwelt upon or recommended by him, Barrington 
on Statutes, p. 1. His work was published between 1262-'7.] 

Fortescue, in his book " De Laudibus legum Anglise," written in the reign of 
Henry VL (1463), a book replete with noble thoughts, repudiated the civil law 
doctrine. In his assumed conversation with Prince Edward, he says, " Let it not 
trouble you, most noble prince, to know whether it is best for you to study 
the civil or common law, for the King of England cannot change or alter the 
laws of his nation at his pleasure. For he governeth his people by jjower 
not only royal, but also politique. The civil law says, what pleases the prince 
has the force of law. But this much differs from your power, for the people 
are ruled by such laws as they themselves desire. Rejoice, therefore, Sove- 
reign, and be glad that the law of the land is such." Old translation. He 
represents that many of the former kings of England were continually 
annoyed because they could not introduce this slavish principle into the 
English law. This view is confirmed by the existing formula of assent to a 
lavf passed by parliament — " le roi le veut." 



ME. 



life, liberty, or property, except by tlie judgment 
of his peers, and by tbe law of the land.^ Thougli 
tlie Roman law recognized tlie selection of a body 
of men to wliom legal questions miglit be sub- 
mitted, somewhat analogous to a jury, yet it did 
not make tlie grand and capital distinction which 
has preserved our theory so long, and has incorpo- 
rated it so fully into the fundamental law of our 
States, that a criminal on trial cannot dispense with 
its full number, even if he will. The select body, 
in the Roman procedure, in its later development, 
pronounced both the law and the fiict.f They 
ultimately needed assistants, or assessors who knew 

* I am aware that some writers explain these words differently. Mr. Hal- 
lam and Mr. Reeves are of opinion that the words " law of the land " refer 
to trial by combat or ordeal, while Mr. Forsyth, History of Trial by Jury, 
pages 108-12, insists that the words "judgment of his peers" do not refer to 
trial by jury. His main argument rests upon the use of the word judgment. 
He urges that the verdict of the jury cannot hQcs^l&i. a. judgment, and believes 
that the words refer to trial in county and manor courts. It seems incredible 
that the barons of England should have made this great State paper hinge on 
trial in manorial courts and on the law of combat and ordeal ! Technical 
legal rules may be pressed too far in interpreting national documents. Trial 
by jury was originally a trial by witnesses from the vicinage, who informed 
the judge of what they themselves knew. It seems probable that, while they 
relied mainly on their own knowledge, they also heard the statements of 
others. In the progress of jurisprudence, they were required to decide only 
on what was laid before them as evidence. 

•j- Savigny, History of Roman Law, vol. I., ch. 4. While admitting the 
above proposition, in regard to the jurisprudence of the middle ages, he regards 
the earlier Roman practice as quite similar to our own. In this he appears to 
have been mistaken. The Roman judex or juryman did not render a verdict 
for the court to act upon, but gave the judgment. This is a very important 
distinction, for, under this rule, the functions of the juryman were in the same 
danger of being absorbed by the judge, as in the middle ages. 



10 ME. dwight's address. 

the law. These associates were usually wily aud 
subtle men, who were ^ conversant with the intric- 
acies of jurisprudence. They gradually elbowed 
out their unlearned companions, until all the ques- 
tions were decided by a body of judges who had 
no sympathy with the people at large. The law 
became more scientific, but the arbitrary maxims 
borrowed from the Roman codes were thus intro- 
duced into the laws of most of the nations of Con- 
tinental Europe. In France, justice became not a 
duty, but an inheritance. The right of judicature 
was used as a means of personal gratification. The 
bar, as Stephen tell us, "formed not 2iprofessio7i^ but 
a caste; a distinct noblesse, in favor of aristocratic 
rights, and the rights of the King. The aristocracy 
of the robe had no alliance with the democracy of 
the jury box."* 

But with the great and distinctive idea of English 

* Fortescue says, " that no other nation of the time could have a jury 
because of their condition. England had much pasture land and great 
numbers of cattle : in other countries men were mainly devoted to tilling the 
ground, which rural exercise engendereth rudeness of wit and mind." 
" England is so filled with landed men that a 'thorp' cannot be found so 
small where dwelleth not a Knight, or an Esquire, or a Franklein, or other 
freeholder, while there are many yeomen of substantial means to form a 
jury. In other countries the noblemen have small store of pasture and live 
far apart; so, as these cannot be assembled, the jury must be made up of 
poor men who are not ashamed of infamy, or are so blinded with rustic and 
brute rudeness ae not to be able to behold the clear brightness of the truth." 
De Laudibus, 65, 69. His description of the England of his day is very 
attractive. 



ME. DWIGHt's ADDEESS. 11 

jurisprudence, that the Jury are to take the law from 
the court, it cannot disa23pear from our tribunals. Nor 
ought it to fall into disuse ; for, aside from the protec- 
tion furnished to the individual, its value as a means 
of education to the people at large cannot be over- 
estimated. The humblest citizen is taught to think, 
to analyze, to compare evidence ; while, if he be at all 
thoughtful, he cannot fail to perceive that a new dig- 
nity is conferred upon him, as he wields one of the 
greatest powers exercised by the Supreme Being over 
man — ^the power of judging of his acts. Although 
this j^rinciple has been grafted on to the law of 
some of the countries governed by the civil code, it 
has seemed to grow like a scion on an alien stock.''^ 

So, too, the bold maxim, that " Every man's house 
is his castle," though evidently the product of an age 
when private wars were in vogue, and men defended 
themselves by their own arm, breathes the free spirit 
of the forest and the fastness. It is not the polished 

* From 1191, when trial by jury was introduced into France, to 1848, 
the law concerning juries was changed no less than twelve times ! Edinburgh 
Review, October, 1858. The author of the able article referred to favors 
the introduction into Scotland, in criminal cases, of our principle of an unani- 
mous jury. See Forsyth, " Trial by Jury," for a full account of the European 
nations which have introduced the system, and the partial success which has 
attended its introduction. In Buckle's History of Civilization, chap. 9, are 
some very good remarks on the difference between individual development in 
England and in France, although, in pursuit of a favorite theory he does not 
give sufficient prominence to the Anglo-Saxon element in English character, 
nor to the training acquired by those who participate injury trials. 



12 ME. dwight's addeess. 

phrase of a Cicero or Hortensius, nor can its equiva- 
lent be found in tlie pages of any Roman jurist. 
The Roman lawyer Gains says a man's house is his 
refuge. So is the sheepfold for the lamb ; but what 
cares the wolf for that when he enters. The common 
law declares that a man's house is his fortress^ which 
he may defend against all assailants, even the chief 
magistrate himself, unless the intruder comes armed 
with a legal mandate in a proper case. I barely 
notice those delicate theories of the common and 
statute law, in regard to personal security and per- 
sonal liberty, so delicate that the most sensitive lady 
could. not wall herself around with a protection more 
complete than the law itself fm'nishes, as well as the 
theory that each individual who violates the rights 
of others is personally responsible, and cannot shield 
himself by proving the mandate of a superior officer. 
In these respects our law may claim a proud pre-emi- 
nence, as long as man is of more consequence than 
the property which he possesses. 

In fine, speaking in general terms, but two systems 
of civil jurisprudence have challenged the attention 
of the world: the civil law of Rome and the common 
law of England. The first drew the most refined 
and philosophical distinctions in regard to property. 
The more it is studied, the more its truly symmetrical 
and majestic proportions strike the beholder with 



ME. dwight's addeess. 13 

astonisliment. Its penal code was in many respects 
equitable, but in the matter of personal rights it had 
yielded to absolutism. It was like an accomplished 
gentleman, who had every grace except that he 
lacked independence and personal freedom. The 
common law, on the other hand, was in many respects 
rude and unphilosophical ; it was, in its early forms 
technical to the last degree ; its discussions were often 
puerile, and its solutions worthless, but it had in most 
vigorous life precisely that element which the other 
system lacked. It was not ashamed to borrow of 
the civil code many of its best provisions, for it had 
vigor enough to assimilate them, and incorporate 
them into its own growth. It was the rude man of 
the country, capable, by contact with civilization, of 
receiving the highest polish, and it was free. The 
one has aided to produce continental Europe, the 
other, England and the United States. 

In the next place the English law has a history 
parallel with English progress. The great epochs in 
the history of the nation are eras in the history of 
constitutional and municipal law. These two are so 
closely connected together, that it is almost impossible 
to separate them. When Wilham the Norman, in 
the year 1066, conquered, or, as Sir William Black- 
stone in more polished terms expresses it, acquu'ed . 
England, he with rough hand repressed the murmurs 



14 ME. dwight's address. 

of a discontented people, and laid upon tliem all tlie 
heavy burdens of tlie feudal system. After him Eng- 
land had its rulers who legalized oppression, and 
systematized rapine. So far had this gone, that in 
Stephen's reign men openly inveighed against Provi- 
dence, crying aloud that "Christ and his saints were 
asleep." 

The great progress of England has consisted in 
protecting the person, and in shaking off the fetters 
from the law of her landed property. I do not 
mean that she has abandoned feudal theories, for 
these are so entwined with the growth of the law, 
that to pluck them out would be to root up the law 
itself; but I speak of the feudal clogs on transfer, 
the exactions and tyrannous burdens of the system. 
Even her wars have been but of little consequence, 
except so far as they have effected legal and constitu- 
tional alterations. The sea-gii't isle has always been 
too firmly anchored to feel sensibly any shock from 
without. The surface of English society has not been 
disturbed by exterior storms, but by internal volcanic 
eruptions. Their wars, when not civil, have been 
fought on foreign soil. Her citizens may have been 
allured by the visions of glory, but they have not 
been compelled to summon all their energies for the 
exercise of the sacred right of self-defense. If you 
ask them where are the events of interest in their 



• ME. dwight's addeess. 15 

national life, they do not point to Agincourt or Blen- 
heim, or even to Waterloo, but to Magna Charta, the 
Petition of Rights, the Habeas Corpus Act, and the Bill 
of Rights. Magna Charta itself contains provisions of 
a strictly legal nature — such as the one which secures 
a widow's right of dower with her quarantkie. The 
members of the bar and the judges sprang from the 
people, and by means of the jury were always in 
contact with them. In fact, the bar formed one of 
the ties by which the middle and lower classes were 
bound up with the aristocracy. Many of the Chief 
Justices, like Lord Chief Justice Hale, had the advan- 
tage of being born in the middle ranks of life, of 
receiving a liberal education, and of being obliged to 
depend on their own exertions for distinction. Those 
who were descended from the aristocratic classes were 
almost all younger sons of younger brothers, and had 
their fortunes to make and their fame to achieve. 
They sympathized with the progress of society. 
When the legislature endeavored to establish entailed 
estates, the judges by a pious fraud defeated them ; 
when a further attempt was made to introduce perpe- 
tuities, under the subtle doctrine of contingent uses, 
Lord Bacon, in his character of lawyer, suggested the 
general principles of that happy medium, by which 
estates can be locked up in families for a well-ascer- 
tained and limited period. When Charles the First 



16 ME. D wight's ADDEESS. 

needed to be cliecked in tlie undue exercise of Ms pre- 
rogative, " our great master," Lord Coke, framed and 
carried the "petition of right" with such lawyers as 
Selden and Pym to advocate it. When the old writ 
of Habeas Corpus, which sprang out o£ Magna Charta, 
needed to be fortified and strengthened by new pro- 
visions and penalties, Shaftesbury, once Lord Chan- 
cellor, promoted it. When the House of Stuart was 
driven from the throne and the English constitution 
was to be secured for all time, the draft of the sub- 
stance of the great state paper of that period made 
the name of the distinguished lawyer, Somers, impaor- 
tal. To a prominent member of that profession. Sir 
S. Komilly, it was left to suggest the principles of 
reforms in the criminal law, while the recent great 
changes in the administration of the civil code have 
been fostered by such men as Lords Brougham, 
Campbell and others, although due credit should be 
given to the philosopher Bentham, for the suggestion 
of fruitful ideas. It is true, that leading lawyers 
have opposed many of these changes, and that others, 
not lawyers, have been greatly instrumental in the 
introduction of some or all of them. I do not deny 
that, in the progress of the law, individual members 
of the bar have been oppressive and unjust, and that 
bad monarchs hav& found among them pliant, expert 
and unprincipled servants. . Still it is also true that, 



ME. D wight's address. 17 

in every crisis wliere a bold patriot and statesman 
from tlieir body was needed, he could readily be 
found. In no one instance, as in France before tbe 
Revolution, have the whole profession abandoned the 
people. 

The influence of the legal profession can also be 
traced in the cautious and conservative character of 
all the changes in the common law. From the earliest 
state paper down to the latest, the plan of the patriot 
lawyers has been, to retain, so far as practicable, the 
old ; to add, by way of amendment, the new. In the 
same spirit was our own United States Constitution 
formed. When the old Confederation was found to 
be illogical in principle, and utterly inefficient in 
action, it was not resolved to discard it, but only to 
form a more perfect Union — to estahlisli justice — to 
insure domestic tranquillity. There have been more 
elegantly devised schemes of government, both in 
this country and abroad, than either of these consti- 
tutions — ^logically faultless — beautiful in their mechan- 
ism — -their only possible defect was, that, when an 
effort was made to put them in motion, they would 
not go. On the other hand, the Enghsh constitution, 
largely framed by lawyers, full of contradictions and 
absurd legal fictions, has been practical and effective, 
and in its development has made rich and free one 
of the greatest nations of the earth. 



18 ME. 

This Mstorical progress of the law is important in 
another point of view — it greatly complicates its 
study. There is a large class of questions in the 
English law which ought to have no place in a truly 
philosophical system of jurisprudence. These may 
in general terms be called questions oi forum — the 
inquiry is not what a person's rights are, but where 
they must be enforced. So that rights which are 
denied in one court are granted in another. The 
Roman theories of jurisprudence admitted no such 
view. Her law, in its full development, was as com- 
prehensive as her empire. When she had conquered . 
a nation, she annexed it, incorporated it, assimilated 
it, while important legal questions arose which could 
only be settled by a time philosoj)hy.^' 

Although, down to the destruction of the empire, 
there was a distinction between cases of ordinary and 
extraordinary jurisdiction, analogous to our distinc- 
tion between law and equity, they were both exam- 
ined by the same judicial officer. Great Britain was 

* " Rome, in her colonies, continually reproduced herself; every colony was 
but an image of the mother city, with like holy rites, like courts, like laws> 
temples and places of public commerce." — Selden. The early forms of the 
Roman law were very technical. As the republic expanded its limits it became 
necessary to liberalize her jurisprudence. Savigny gives an account of the 
conflict between the old jurists, who strove to preserve the fixed forms of 
procedure, and the judges who wished to inti-oduce broader principles to meet 
the exigencies of the case. The author shows, in a truly philosophical spirit, 
how all law must be treated as an index of a nation's development, and that 
the progress of legislation is not governed lay chance, but is the expression of 
the very life of a people. 



MR. dwight's address. 19 

insular and isolated. If she liad gained territory, slie 
would liave governed it as a mere dependency, and 
would liave applied to tlie colonists the narrow rules 
of the common law. She had no great legal ques- 
tions with which to deal in the early periods of her 
history. Her courts were created by accident, or 
gained jurisdiction by quarreling for it, or by filching 
it under the guise of some subtle legal fiction. The 
higher clergy had the care of testaments, and of the 
administration of estates, and the court of admiralty 
of certain questions arising at sea.* 

The common law courts dealt with crimes, person- 
al actions, and questions in regard to land, while 
their views in some respects were so narrow that the 
Court of Chancery was obliged to supply the defects 

*The jurisdiction of these courts is said to have been obtained by en- 
croachment. 

"The common law had cognizance in Edward First's time of things done 
upon the sea ; however, afterwards it kept its limits within the body of the 
county, leaving the sea to the Admiralty." Selden's notes to Fortescue, 
chap. 32. He cites to the point of jurisdiction of the common law courts, 
a case in 25th year of Edward First's reign (fol. 82), with several other 
cases. 

"The cognizance of wills and testaments does not belong by common right 
to the ecclesiastical courts, but to the temporal orcivil jurisdiction, yet by the 
custom of England it pertains to the ecclesiastical judges." Hale's History 
of Common Law, p. 28. The jurisdiction was settled in Bracton's time. He 
says : " Si de testamento oriaturcontentio, mforo ecclesiastico debet placitum 
terminari, quia de causa testamentaria (sicut nee de causa matrimoniali) curia 
regia se non intromittit." Book 2, p. 61. It is even recognized at an earlier 
period by Glanville. There is reason to believe with Dwarris (on Statutes, p. 
159), that the jurisdiction of the ecclesiastical courts was not strictly usurped, 
but grew out of positive enactments by William the Conqueror. Bentham, 
vol. 2, p. 179, states forcibly the complexity of English procedure. 



20 ME. dwight's addeess. 

in tlieir administration of justice. The Court of 
Ckancery grew out of tlie practice of appealing to tlie 
king's prerogative for redress in cases where tlie posi- 
tive law was deficient. The king, being unable per- 
sonally to decide the cases that sprang up, heard the 
cause in council or delegated the duty to his officer, 
the Chancellor, then always an ecclesiastic. The 
Chancellor, in the early history of the courts, pro- 
ceeded without adherence to rule. He would direct 
the parties to go before arbitrators, or he would 
mediate between them himself; or he said to them 
that he would talk with some great man in regard to 
the case. Some of the early decrees are sufficiently 
singular. Thus in one case the court say, "Consi- 
dering the honorable deahngs of the plaintiff during 
her whole course of life, and of the good opinion 
had of her counsel, the Court thinks well of her title, 
notwithstandiug the allegations and proofs to the 
contrary." It was emphatically a court oi good feeling. 
A plaintiff had failed in his suit, and had been con- 
demned to pay costs. The court say, " Considering 
that he is a poor boy, in very simple clothes, and 
under twelve years, the costs shall be remitted." The 
costs for dismissing a bill were as remarkable as any 
part of the case — only twenty shillings. As the 
Court advanced, although it disregarded form, and 
took for its guide general jurisprudence, and looked 



MR. dwight's addeess. 21 

for substantial justice, it became bound down to a set 
of rules and was governed by precedents. These 
must now be studied as a science, and are not to be 
discovered, as many suppose, by ttie plain, common 
sense of a layman. 

Many have supposed that this very division of 
remedies among separate courts has conduced to 
greater precision in the law, and that different rules 
can be adopted therein to meet the public con- 
venience and promote real justice. Without enter- 
ing upon that question, it is only our purpose to 
show how much the labor of the student is increased. 
Nothing is more distressing to the learner in juris- 
prudence, in the outset, than the apparently con- 
flicting views taken in the different Courts. In 
his common law books he finds it positively laid 
down that husband and wife are one, that they 
cannot sue each other — ^that they cannot contract 
together, and that all the wife's personal property 
belongs to the husband. Having treasm'ed this 
up, he learns in his equity books, that they may 
be in that Court two closely contending litigants, 
pursuing each other with rancor, not necessarily 
veiled even under the forms of courtesy — ^that they 
may contract together in a proper case, and that 
the wife's separate property does 7iot belong to her 
husband. In his common law books he learns that 



90, 



a mere finder of goods upon land has no lien upon 
them, even if lie has rescued them from injury; 
in the Admiralty books he learns that a finding 
or saving at sea, or under the jurisdiction of that 
Court, is "highly meritorious," and that the salvor 
is carefully protected in his rights — so that, if he 
should save a sunken or abandoned boat, with its 
contents, in the Hudson Eiver, where the tide ebbs 
and flows, he would have a lien upon the property, 
which would be recognized even in the common 
law courts ; if above tide -water, he would have no 
lien on the goods, even though he had used the same 
exertion, and perhaps would receive no compensation 
at all, unless the act was done with the knowledge 
or consent of the owners. In studying the law in 
regard to wills, their proof and validity, he finds 
that a decision of the Surrogate (who represents the 
Ecclesiastical Courts of England in one branch of their 
jurisdiction), in regard to the validity of a will of 
personal estate, if not appealed from, or reheard in a 
limited period, is conclusive ; but that, if the will 
includes both real and personal estate, so far as the 
real estate is concerned, an appeal from the Surro- 
gate's decision is wholly unnecessary, and that for a 
long series of years the question may be raised anew 
in the common law courts ; or, if the case has been 
appealed from the Surrogate to the highest Court on 



23 



one brancli of the j^roperty, and has been decided 
after the appeal, still he may bring a new suit in 
regard to the real estate, without any reference to 
the decision of the appellate Court. Thus it may 
happen that on the same will, and precisely the 
same state of facts, it may be decided that the tes- 
tator is sane enough to make a will as far as his 
personal pro]3erty is concerned ; and that he is so 
insane that he cannot make the will when the real 
estate is considered. The only possible reason for 
this latter, theory is the one given by Ch, Baron 
Yelverton, in the House of Lords,* that the cases 
are heard by different jurisdictions ! The anomaly 
does not exist from the fault of the judges, for they 
have regarded it as an absurdity, and recommended 
its abolition, from Lord Hardwicke's time down to 
the present day.f 

The importance, then, of studying the law historic- 
ally cannot be too strongly inculcated. Some of the 
leading questions of our time have been fully illus- 
trated only by the industry of those who have traced 

* 1 Ridgeway, P. C, 2'7'7. 

f 2 Atkins' R., 3*79. There are some early decisions on this point in 
Crolte's Reports. In King James First's reign, an effort was made to induce 
the Courts of ordinary jurisdiction to prohibit the ecclesiastical judge from 
hearing the case, on the ground that his decision might influence a jury, 
when the cause came before them. Commissioners appointed in the time of 
the Commonwealth recommended the abolition of this branch of the juris- 
diction of the Ecclesiastical Courts. 



24 



the whole course of legal history. For instance, the 
question, in what cases disj)ositions by will to chari- 
table uses are valid, was thus carefully examined " in 
the Girard CoUege case" by Mr. Binney, and the 
means furnished to the Court for a discussion of the 
true doctrine upon that involved and intricate sub- 
ject. AdhuG sub jiidice lis est. While, then, the 
student is mastering the present law, he must descend 
through all the strata of centuries, hammer in hand, 
till he comes to the hard granite of the feudal system. 
It would in general be useless to seek to get any 
lower, or to chip away much of its substance. He 
may look and pass on. In the secondary and other 
formations he will find many rare things of value, not 
merely fit to be laid away in the cabinets of the 
curious, but which can be polished and fitted for imme- 
diate use. 

This historical examination may in part accompany, 
and in part succeed, the systematic study of the pre- 
sent law.'"'" 

It is another prime feature of the common law 

* The Roman code recognizes the necessity of an historical study of the 
previous law. Says Gaius, in a passage quoted: "Being about to interpret 
the laws, I must go back to the very origin of the city, not because I wish to 
make my commentaries verbose, but because I observe that I can only thus 
make my work symmetrical. For, if it is a shameful thing for an advocate to 
argue a cause before a judge, without making a preliminary statement of the 
facts, how much more disgraceful it is for one who pretends to interpret the 
law, to undertake the task without an historical examination of it, coming to 
the subject, as it were, with unwashed hands." 



MR. D wight's addeess. 25 

tliat it lias not been tlie mere deduction of theorists. 



reasoning from certain admitted principles, but that 
it has been slowly worked out by actual experience, 
announced by the judges, and formed into binding 
23recedents. The Anglo-Saxon mind cannot admit 
the idea that a judge may originate law. He can 
only^:)7'0?^6>?mc6 it, and that after argument, and when 
the precise point is involved. Everything else is a 
dictum — a mere saying — a bright scintillation, per- 
haps, from the judicial mind, but expiring with the 
occasion which gave it birth. Thus, in developing 
the law, sharp contests have arisen over tangible 
facts. Judicial discussions have been animated by 
the fierce passions of the parties to the suit. The 
questions of slander have not grown out of hy230- 
thetical cases, but have been actual charges, en- 
venomed by party rancor or personal enmity. The 
ejectment suits were not mere mooted questions, but 
arose when the true owners had been turned out of 
possession with the strong hand. Here, under color 
of judicial decision, have been great battles fought. 
Here have been struggles for wealth and jDower, and 
contests for the prizes of party ambition. All that 
talent, learning, subtle disquisition, and nice analysis 
could do, has been done. The lawyers have at times 
contended so desperately as to arouse the monarch's 
sceptre. Thus, the development of our law has been 



26 ME. 

a great drama of centuries — a romance in its circum- 
stances — a drama in its action. 

As a general rule, where tlie government was not 
concerned, and in later times where it was, the judges 
perceived the excitement without sharing in the pas- 
sion, and have had a solemn consciousness that they 
were elaborating rules for the use of future ages. A 
high English authority. Chief Baron Pollock,*, has 
recently stated, from the bench, that he whom we 
only know as " the infamous judge Jeffries " was no 
bad judge when the rights of the king were not 
in question. Koger North, also, in his admirable 
life of Lord Keeper Guilford, tells us in what round 
terms and with what virtuous indi2:nation the same 
judge berated from the bench the magistrates of the 
city of Bristol, for an evil practice into which they 
had fallen.f 

It is remarkable with what slowness — intolerable 
slowness it would be in our time — the early judges 
proceeded to a decision on an important point — how 
they had it argued and re-argued — through how 
many appeals and re-arguments on each appeal the 

* 36 English Law and Equity Reports, p. 626. 

f The mayor and aldermen of Bristol had become "judicial kidnappers of 
small rogues and vagabonds, whom they sent to America and sold." Jeffries 
appears to have treated these dignitaries with great severity. North, who 
was no friend to him, says, " that he delighted in such fair opportunities to 
rant." See a graphic account of the incident in North's Lives, vol. 2, p. 
24-2Y. 



MR. dwight's addeess. 27 

case went, how long they kept it under consideration, 
until they, perhaps, forgot the argument, while the 
interests of the client were lost sight of in their 
anxiety not to jeoj)ard the integrity of the law. 
This theory, adopted from good motives, was a mis- 
taken one, and was shorn of its defects at the opening 
of the career of Lord Mansfield. A well-known and 
competent authority, after an examination of all the 
evidence, is clearly of the opinion that Shakespeare 
was once a clerk in a lawyer's office. As this was 
during the period spoken of, if he copied all the 
papers, and waited on the arguments, he had good 
reason to know what was meant by "the law's 
delay."-"- 

The great father of modern philosophy, profoundly 
versed in our jurisprudence, though disliking profes- 
sional practice, adhered closely to precedent, directing 
Justice Hatton, when he was made Judge, to draw 
his learning out of his books, and not out of his brain 
It would be interesting to trace how Lord Bacon's 
legal studies acted on his philosophical speculations, 
and how much his caution, in reaching conclusions in 
philosophy, depended on the care whicli he used in 

* This delay is not peculiar to English jurisprudence. (Spb Fortescue de 
Laudibus, 12Y.) He says: "While I was lately abiding in Paris, mine host 
showed me his process in writing, which, in the Court of Parliament, he has 
followed eight years, to recover eight pence sterling, and he was in no hope to 
obtain judgment in eight years more. I also knew other cases like unto 
these." — Old Translation. 



28 ME. D Wight's addeess. 

sifting evidence, and in weighing conclusions at tlie 
bar. 

By this process tlie municipal law of England has 
gained a steady and a fixed character. The principle, 
having been settled after the most exhaustive discus- 
sion, and the most careful examination, assumes the 
binding force of a precedent. Judges have sometimes 
struggled in a mental conflict between precedent and 
principle. Lord Mansfield used to say that he ought 
to be di-awn placed between the two, like Garrick 
between Tragedy and Comedy. And yet this very 
Judge, in a great case, in which there was a difference 
of opinion on the bench, says, "This is the first 
instance of a final difference since I have been here 
— ^thu'teen years. That unanimity could never have 
happened if we did not communicate our sentiments 
with great freedom; if we did not form our judg- 
ments without prepossessions ; if we were not open to 
conviction, and ready to yield to each other's rea- 
sons." Although it is usual to account for this 
unanimity by stating that the master intellect of 
Lord Mansfield overshadowed the other judges, yet, 
when we consider their ability^ and this declaration, 
it is fair to presume otherwise. 

How different is this from the condition of parts 
of the Roman law. A distinguished jurist of our 

* 2 CamplDell's Ch. Justices, p. 395. 



MR. p wight's address. 29 

own country, Judge Story, lias collected tlie opinions 
of the leading civilians on the subject of the conflict 
of laws. The wide and comprehensive research of 
the author has only displayed its uselessness, for, from 
the discordant views of the writers cited, scarcely 
any intelligible principle can be extracted. Instead of 
presenting us the conflict of laws, our ears are stunned 
by the conflict of opinions. Of course, large portions 
of that law are definite and certain, but the fact that, 
since its codification by Justinian, its progress as a 
system has been largely due to text writers, reason- 
ing without an actual case discussed before them, 
while the progress of the common law has been 
mainly due to judicial decision, based on actual cases 
and discussions, forms a marked difference in the 
two theories of jurisprudence. Countries governed 
by the civil law have felt the difficulty of this theory. 
Spain resolved, in 1*713, that it was a great inconve- 
nience that her tribunals had followed foreign jurists 
and authors, to the depreciation of her own, and for- 
bade the quoting of foreign opinions in antagonism- 
to the views of Spanish jurists. What was this but 
establishing in an indirect way the rule of following 
precedents,* 

* See 17 Martin, Louisiana Rep., 583. As to the similar condition of the 
Roman law before the Justinian Code, see Savigny's History of Roman Juris- 
prudence, vol. 1, page 8. He says: "The great Roman jurists entertained, 
on many subjects, very different opinions, and who possessed the power of 
reconciling these differences by a judgment of higher authority? The decision 



30 ME. dwight's addeess. 

When law is developed in the English mode, it 
is not theoretical — an object of speculation or criti- 
cism; it is practical, and becomes at once a rule of 
action. It will be generated slowly as cases arise, 
and may be submitted to the tests of experience. If 
it appears that a wrong step is taken, it can be 
retraced, and the mischief corrected before the vice 
has permeated the entire system. It is known that 
Lord Mansfield almost created our commercial law, 
and the law of insurance. It is a sagacious remark 
of Lord Campbell's, that when the former had to 
grapple with the great questions that came before 
him, instead of proceeding by legislation, and attempt- 
ing to codify, he wisely thought it more according to 
the genius of English institutions to introduce im- 
provements, gradually, by way of judicial decision, 
while, he not only settled the particular case, but 
established with precision, and on sound principles, a 
rule to be afterwards quoted and recognized as gov- 
erning similar cases. 

of lawsuits must have been exceedingly difficult, or unsteady and arbitrary. 
The Emperor Valentinian regulated the matter in the West by an imperial 
decree ; the principle was afterwards adopted in the East by the Theodosian 
Code. By the rule then adopted, no treatises were to be cited except those 
of five jurists, who were named, viz. : Ulpian, Papinian, Paulus, Caius and 
Modestinus." A code is almost a necessary refuge where law is developed by 
mere thinkers ; the idea of an authoritative exposition of principles must be 
carried out either by judicial decision or by legislation. The present very 
loose practice of reporting cases, both in this country and in England, threatens 
to introduce into the expositions of the common law the same vice of t«?i- 
certainty. If reporting is not regulated by legislation, we shall be driven to a 
code. 



ME. D wight's address. 31 

Doubtless, the judges liave sometimes assumed tlie 
duty of tlie legislator, but even then judge-made law 
is better than text law. In this manner the common 
law has been accommodated to the advancing spirit 
of each age. This has been especially true in the law 
of personal property, contracts and commercial law. 
The spirit of the old scholastic philosophy had so 
pervaded the law of real estate that few organic 
changes could be made. The law of fixtures, how- 
ever, is an instance of a modification made to meet 
the changing circumstances of the times, while a 
court of equity, " that rib," as Bentham says, " taken 
out of the side of the law in the dark ages," the 
younger, and in some respects the comelier sister, has 
so treated it, in the law of partnership and otherwise, 
as to meet the exigencies of an advancing trade and 
commerce. 

If any new product or invention is introduced, the 
common law establishes rules in analogy to similar 
cases.^' Thus, it attaches itself to the railroad, and 
soon there are worked out bulky volumes on the com- 
mon law in regard to railroads. It applies itself 
to the electric telegraph, and adds that subtle and 
incorporeal agent, electricity, the very Ariel of 

* This theory is as old as the law itself. Says Bracton, " If any new and 
unusual case arises, such an one as has not before arisen in the Kingdom, let 
it be adjudged according to analogous cases, if any exist, for it is good to pro- 
ceed a similibus ad similia." Chap. 2. 



32 ME„ dwight's addeess. 

jurisprudence, to the list of common carriers, laying 
down the rules for its guidance in the transmission of 
messages* In this manner the law is everywhere 
present, either active, or, if dormant, ready to spring 
into life when the occasion arises. 

Side by side with the study of the history and 
principles of law, you are also to examine legislation 
and its history. The statute-making power has been, 
in modern times, continually on the alert, changing 
the rules of the common law, and adopting new pro- 
visions to meet the altered conditions of society. It 
will be necessary to examine the principles that guide 
the courts in the interpretation and construction of 
statutes, especially in case of their conflict with 
the fundamental law of the State or of the United 
States. Legislation has a history which has also to 
be studied, for one statute cannot be understood 
without the examination of others on the same sub- 
ject, and sometimes not without a more or less minute 
examination of the general history of legislation. 
The knowledge of this enacted law grows in import- 
ance every year. 

In our own State, we have made great changes in 
the common law, especially regarding real estate, 
while, as every person knows, we have abolished the 
old forms of procedure. It may be remarked in 

* 33 English Law and Equity Reports, p. 180. 



• MPw D WIGHT S ADDEESS. 33 

passing, that by a singular coincidence we have gone 
through with the same process, in respect to pleadings, 
as the Romans. They had technical forms of actions ; 
so had we. They had actions, analogous to our 
chancery suits. They consolidated the two, and 
proceeded without form. This we have done. In 
proceeding without form, they found, after a long 
experience, that it was necessary to pass a rule which 
we have not yet adopted. The Justinian code 
required that a case should not be in court more than 
three years. The reason given was, that suits were 
likely to outlast the life of man, and to become 
immortal. We may yet find it necessary to complete 
the parallel, by adopting a similar provision. 

By constitutional provisions from the beginning 
such parts of the common law and amendatory 
statutes as were in use during our colonial period, 
down to April, 1^75, were adopted as the law of this 
State. Taking, as we did, an entire system of law 
from another country, it is surprising that it could 
be so readily adapted to our institutions. What- 
ever we found unsuited to our condition, we rejected, 
either by judicial decision or by legislation. Thus 
we discarded the English theory of the descent 
of land to the eldest son. So the theory of 
ancient lights or windows, if it ever had any solid 
foundation in the law, to the extent to which it 



34 MK. dwight's addkess. 

was carried, was rejected or modified, so as to suit 
our circumstances. So we dealt with tlie ecclesiastic- 
al law, in regard to the effect of future promises to 
marry, and with some of the rules of law in regard 
to the dead. A branch of the latter doctrine has 
been recently shown, with elaborate research, to rest 
on false theories, fanciful etymologies, and in its 
details to be wholly alien to our most cherished 
sentiments, and was pronounced no part of our law.* 
How readily will this conclusion be acquiesced in, 
when we learn that, in this last year, it was decided 
in the high Court of Criminal Appeal, in England,f 
that a son might, by the common law, be indicted 
and convicted of a misdemeanor, who openly, and in 
the light of day, removed from a dissenting burial- 
ground the remains of his own father, although he was 
prompted by the most filial sentiments, and although 
he had reason to believe that the trustees of the 
cemetery were about to devote the ground to secular 
purposes. The son had not asked the permission of 
the trustees. The judge, who pronounced the opinion, 
said, " the common law recognizes no property in the 
remains of the dead." He then gave a singular 
reason for his decision, stating that if the conviction 
were not sustained, there would be no mode of 

* See Report of Hon. S. B. Ruggles, 4 Bradford's Surrogate's Reports, 503. 
f 40 E. L. E., 581, Regina vs. Sharp. 



MPw dwight's addeess. 35 

protecting the remains of deceased persons, interred 
in the burial-grounds of dissenters. As if the best 
way to ]3rotect them was not to decide that the son 
had a property in the remains of a deceased parent. 
Be it said, to the honor of the Bench, that they 
exercised a humane discretion in inflicting only a 
nominal fine. Doctrines like these we ought to reject 
at once, without waiting for legislative action. They 
are the result of circumstances peculiar to English 
history, and ought to be regarded as no part of our 
law. It is evident, too, to any one, who watches the 
development of the law of the two nations, and the 
course of legislation, that their jurisprudence diverges 
from the common point more widely every year. 

The common law is to be learned in a great variety 
of reports, and in some authoritative treatises. Among 
the good cases will be found many that are mistaken 
and worthless. They were either badly argued or 
miserably reported, or the " Judge mistook rapidity 
for the due administration of justice, and made de- 
crees which ought to serve not as examples to be imi- 
tated, but as land-marks to be avoided by all future 
judges." Many of these cases have been explained, 
limited, criticised, or overruled in other decisions. 
They are declared counterfeit coin ; but the inexpe- 
rienced eye is in great danger of receiving them as 
genuine. Other cases have their authority dimin- 



36 



islied, because a bare majority of the judges con- 
curred in tlie decision, although, as it has been 
happily expressed by Justice Coleridge, late of the 
Queen's Bench, English judges, as a whole, "have 
had so much of general agreement as served to give 
authority to their judgments, with so much occasional 
difference as served to show their individual responsi- 
bility and inde23endence." This crowd of volumes urges 
upon us a systematic study of the law. One must be 
guided by the principle rather than by the case. Even 
abohshed law must be studied carefully, both because 
it governs all acts done while it was in force, and 
because it is often explanatory of what is introduced 
in its place. After Chancellor Kent had given in his 
commentaries an extended discussion of a legal rule 
known among lawyers as " the rule in Shelley's case,'" 
he appended a note to his text, in which he spoke in 
eloquent language of the fact that this rule was abol- 
ished by our Revised Statutes, and remarked that, so 
far as this State is concerned, all he had written is but 
a monument to the memory of departed learning. 
Yet, since that note was written, scores of cases have 
occurred in our courts, in which the abolished rule 
was examined, with its qualifications and limitations. 
Every real estate lawyer meets it, from time to time, 
in deducing a chain of title to land. The fact that it 
exists in full force in other States makes it necessary 



MR. dwight's addeess. 37 



to know it. Changes in the law only complicate the 
lawyer's studies. He must be alike familiar with the 
old rule and the new. Janus-faced, he must look 
both forward and backward. Notwithstanding the 
vital alterations that have been made in the law of 
husband and wife, and the more comprehensive 
changes that are threatened, no competent lawyer 
supposes that a full knowledge of the old rules will 
not be necessary at least during this generation. 

Thus, in free countries, like England and the United 
States, the studies of the ripest jurist are never at an 
end ; rather, just beginning. A great German poet, 
if he had lived here, would not have made one of 
his well-known characters say that legal rights are 
transmitted from grandsire to grandson, like an 
hereditary disease.''^' They seem, sometimes, more 
like the fabrics of which the English poet speaks, 
"they rise like an exhalation." 

We will be asked if all this complexity of laws be 
necessary? We reply, so long as the variety of 
human events is so great; while men seek wealth 
with energy, and compass sea and land to obtain it ; 
while pride and vanity influence testators; while 
trust and confidence are reposed by man in his 

* " Es erbcn sich Gesetz und Rechte 
Wie eine ew'ge Krankheit fort 
Sie schleppen von Geschlecht sich zum Geschlechte 
Und riicken sacht von Ort zu Ort."— Goetde's Faust. 



38 ME. dwight's address. 

fellow; wHle fraud assumes its Protean shapes ; while 
the family exists, and absolute rights are regarded, so 
long will jurisprudence be obliged to adapt itself to 
these important facts in all their details. The com- 
plexity and intricacy of legal principles, I do not 
say of legal forms, is the price we pay for our free, 
advancing and refined state of society — an intricacy 
only to grow more intricate, and a complexity to 
grow more complicated. Yet it is safe to say that he, 
who is thoroughly familiar with the fundamental 
principles of law, has the thread in his hand by 
which he can be guided through the labyrinth. The 
science of pure mathematics has its settled and deter- 
mined principles, which can be mastered by patience 
and application; when these principles are applied 
to celestial mechanism and the perturbations of the 
planets, the problems which grow up need the intel- 
lect of a La Place and a Plana to compass them. The 
principles are few; the objects to which they can be 
applied are almost infinite. Yet, through all these 
complicated movements and action and reaction of 
matter, the master mind goes with certainty, sound- 
ing the abysses with his well-known principles, 
and carrying the torch of exploration steadily before 
him. The mechanism of the heavens is none the less 
scientific, because it is difficult in some cases to apply 
right principles in the examination of its intricacies. 



ME. D wight's addeess. 39 

Yet liow many regard jurisprudence, with tlie same 
difficulties to contend with, as having little claim to 
a scientific character ! Groethe opens his great tragedy 
of Faust by introducing the future arch-magician in 
a rhapsody on the worthlessness of law and the sister 
sciences. He says: 

" I've now, alas ! Philosophy, 
Medicine and Jurisprudence too. 
And, to my cost, Theology, 
With ardent labor studied through. 
And here I stand, with all my lore, 
Poor fool! no wiser than before ; 
Master, ay. Doctor, styled indeed, 
Already these ten years I lead 
Up, down, across, and to and fro, 
My pupils by the nose, and learn 
That we, in truth, can nothing know." * 

After more to the same purpose, and a deter- 
mination to look into the very essence of things, and 
no more to busy himself with words, he abandons 
these sciences in despair, betakes himself to magic and 
kindred subjects, and ends, as was natural, in a close 
and altogether disagreeable intimacy with Mephis- 
topheles. 

There is a floating opinion somewhat similar to 
this in the minds of many, the more difficult to meet, 
because undefined, that the science of law is no sci- 
ence, but that it is mere hap-hazard and chance. If 
this be so, it is not due to the subject itself, but to 
the way in which it is administered. No science 

* Swanwick's Translation. 



40 ME. dwight's addeess. 

known among men is more strictly deductive tlian 
the science of a true Jurisprudence. If the conclu- 
sions arrived at be uncertain and unreliable, it is due 
to the bar who argue, or to the Judiciary who decide, 
the cases as they arise. If the charge be true against 
them, it only shows the necessity of a more thorough 
apprehension of legal principles. If the bar be igno- 
rant, no amount of learning on the pa^rt of the 
Judiciary will save the science from the infusion of 
false princij^les ; if the bar be highly educated and 
accomplished, they will, in a measure, elevate even 
an incompetent Judiciary. The argument only goes to 
show that, unless juries are honest and intelligent, 
judges thoroughly trained in their profession, and 
lawyers honorable, studious and learned, the con- 
ditions necessary to a scientific deduction from legal 
principles will not be found to exist. 

It has been the good fortune of the English law 
that at no tiine, in its more modem history, have 
there been wanting great minds to aid in its devel- 
opment. * 

* In the early history of England we find it said that foolish and unlearned 
persons ascended the seat of judgment before they had learned law. The old 
writer before quoted utters a solemn note of warning to this class of judges : 
"Let no silly and unlearned person dare to ascend the seat of judgment, 
which is like the throne of God, lest he shall put light for darkness and dark- 
ness for light ; lest, with untaught hand, after the manner of a madman, he 
strike the innocent with the sword, and free the guilty, and lest he fall from 
his lofty seat as from the height of heaven, like one who began to fly before 
his wings were fledged ; and let every judge beware how, in making a per- 



3m. dwight's address. 41 

We can almost trace the illustrious line, from father 
to son ; the predecessor training, at all events, exer- 
cising a powerful influence over, his successors. Thus 
we see the chief justices mounting through every grade 
of their profession, to the attorney -generalship, and 
thence to the high seat of justice, which they do not 
abandon, except through infirmity or with their 
lives. Thoroughly familiar with every phase of legal 
practice, they biing all the multiform experience of 
the bar to a symmetrical result U2:)on the bench. 
Having, previous to their elevation, practiced before 
men of the highest judicial cultivation, they became 
insensibly moulded after their pattern, so as to pre- 
sent a general likeness. '"'■ Fades non omnibus una^ 
nee diversa taineiiT Said Lord Mansfield : " If I have 
had any success, it is owing to the great mind who 
presided in our highest court of judicature, the whole 
time I attended at the bar. It was impossible to 
attend him, to sit under him every day, without 
catching some beams of his light." In later days 
there has been a series of thorough jurists on the 
bench, so that even the side judges have been some- 
times men of the most distinguished ability, as, for 
instance. Baron Parke, who has shed such a lustre 

verse and illegal judgment, obtained from him by entreaty or money, he may 
prepare for himself, instead of a slight temporal advantage, the sadness of an 
eternal mourning." Bracton, book 1, chap. 2. It is very noteworthy how 
closely this writer connects, in a variety of passages, human law with the " law 
eternal." 



42 MR. D wight's address. 

upon tlie Court of Exchequer in our time, and whose 
name must be known to posterity as one of tlie ablest 
jurists of the age. To how many of these could 
Justice BuUer's remark be applied — "that principles 
were explained and enlarged upon, until men were 
lost in amazement at the strength and the stretch of 
the human understanding?" In our own country, 
similar names can be mentioned of the illustrious 
dead, and of the no less illustrious living. Among 
the latter, without referring to any of our own citi- 
zens, I may be pardoned in alluding to an eminent 
judge, full of years and honors, who has achieved 
for the Supreme Judicial Court of Massachusetts 
what Baron Parke has accomplished for the Court 
of Exchequer in the mother country. Standing 
here, how could I forget one who once occupied 
the chair of jurisprudence in this venerable in- 
stitution? It is not the least of its glories, to have 
numbered one of the principal authors of the Feder- 
alist among its students, and a great commentator 
on American law among its lecturers. 

It is an interesting fact that in the development of 
this science, no jealousy or narrow-mindedness has 
been displayed by its expositors. The leading 
cases in our reports are cited in England with 
all the respect due to them, and not unfrequently 
influence the decision. The English Court of Ex- 



ME. dwight's addeess. 43 

chequer recently abandoned a position previously 
taken by tlieir own authorities, from a conviction 
of the unanswerable argument of one of our New 
York judges. Our own courts are quite in the habit 
of following recent English decisions in point, some- 
times even without entire confidence in their sound- 
ness. This part of our subject may be fitly closed by 
the words of Hooker — "It is easier a great deal for 
men to be taught by law what they ought to do, than 
instructed how to judge as they should do of law ; 
for the wisest are ready to acknowledge that soundly 
to judge of law is the weightiest thing a man can 
take upon him." 

May we not hope that out of these various mate- 
rials a code may arise, framed by profound lawyers, 
and submitted for suggestion and approval not to a 
despotic emperor, but to the best legal thinkers of an 
enlightened people ; a code whose authors shall not 
assume to originate law, but are willing to perform 
the ofiice of aggregation, selection and systematic 
arrangement, and who from the vast material w^ill 
drop the overruled cases and will settle those that 
conflict; a code which shall include our personal rights, 
our domestic obligations, our rights of property, and, 
above all, those delicate rules of the criminal law, 
framed for the double purpose of protecting society 
and of preserving the rights of the prisoner ; a code 



44 ME. dwight's address. 

wliicli, while no valuable line of the rugged com- 
mon law is softened, and not a jot of its independence 
abated is adorned with the jewels of the Roman 
law and contains within itself all the best legal ex- 
perience of the ages ; a code which shall show the 
progress of judicial thought by a comprehensive 
sketch of the legal history of England and America, 
drawn by a master-hand. Thus, when the gold, the 
silver, the wood and the iron are gathered together, 
and the rubbish is burned, a fair and symmetrical 
temple may arise where Themis herself may sit and 
preside unseen, realizing in some measure the charac- 
ter given her by the ancients — -the true daughter of 
heaven and earth. 

But law is not to be understood merely as a 
science. It is also to be practiced as an art. The 
process of presenting a case to the judge and jury is 
very different from that of apprehending it when 
engaged in its study. You were then to be convinced 
yourself. You are now to convince others. You 
are to act the part of an expositor, of a teacher, with 
much suspicion as to the honesty of your motives. 
As far as you confine yourself to the truth, you 
combine those two points which are regarded in all 
other sciences as so difficult of combination — the cha- 
racter of an original thinker and investigator with . 
that of an expositor. This exposition must often be 



ME. D wight's addeess. 45 

made with all tlie clearness of expression and finisli 
of rhetoric of which you are master ; with coolness 
of judgment and versatility of action. You may have 
an antagonist sophistical in reasoning, ingenious in 
technicalities, and unscrupulous in the use of his 
advantages. You may have a judge prejudiced 
against you or your case, irritable in temper, discour- 
teous in interruption, or impatient of argument. You 
may meet a jury incapable of appreciating your fine- 
spun reasoning, or even tampered with by the oppo- 
site party. The case which you had constructed, as 
you thought, so admirably, while in the seclusion of 
your office, falls to pieces under the batteries of your 
antagonist, or is blown away, like gossamer, and 
remorselessly by the judge. The cases on which you 
rested are overruled or doubted ; they were decided 
in another State, and are not necessarily followed ; or 
the law is good, but the judge thinks that they do 
not apply to the matter in hand; or the evidence on 
which you depended does not support your view of 
the cause. If the decision is rendered in your favor, 
you win it in the face of the most determined oppo- 
sition. In the close hand-to-hand struggle at the bar 
you must have real muscle, flexibility of motion, and 
an unyielding will. You must anticipate sophisms, 
and kill them in the germ, and before they have time 
to grow. As was the test applied to the old knights 



46 ME. D wight's addeess. 

in tlie days of cliivalry, you can only prove your fit- 
ness for tlie work by parrying, tliougli in the dark, 
all attacks, and meeting all surprises, from whatever 
quarter they may arise. 

How shall such a profession, requiring for its suc- 
cessful practice such different qualities and training, 
be acquired ? The full answer to this question is not 
altogether easy, and different minds may answer it in 
different modes. In general, this may be said, that, 
for the student, the acquisition of the principles of a 
science may safely precede its practice as an art. In 
the haste of office business, in the varied labors 
imposed upon a lawyer in full practice, in one of our 
large commercial cities, but little leisure will be found 
for the instruction of students. The carefully-drawn 
paper, which they are left to copy, is not understood. 
The work is done mechanically, and perhaps without 
more reflection than the press gives, which, in the 
opposite corner of the office, copies the letter uner- 
ringly for the employer. Let the student have gone 
over the principles of the science carefully and 
understandingly, with a full explanation of technical 
terms, and all the assistance and stimulus which a 
competent instructor can give, that, which before was 
dull and undesired, is then clothed with life and 
interest. On the other hand, the practice of gaining 
the whole of one's knowledge through the medium of 



47 



copying and the details of office business, seems to 
invert the usual order of instruction used in the other 
sciences, and to place that first which ought to be 
placed last. Although some may have the power, 
from natural capacity, to rise to success through these 
difficulties, thousands drop by the way like untimely 
fruit, or lead only a sickly and a worthless life. It is 
certainly no argument in favor of a consumptive cli- 
mate, that, though thousands may die, a few have 
lungs hardy enough to resist the malign influences of 
the atmosphere. The unhealthiness of any regimen 
is to be tested by the majority who die, and not by 
the minority who live. 

This system seems to have been borrowed from 
England. Note what the poet Cowper says of it 
there. He was placed in an eminent solicitor's office, 
where by a legal fiction he was supposed to learn how 
actions Avere commenced and conducted, with the 
practice in law and equity. He says that he slept 
three years in the solicitor's house, but lived in the 
daytime in the society of the ladies, while he and a 
fellow student were employed in giggling and making 
others giggle instead of studying law. The legal 
knowledge thus gained is acquired by the process of 
insensible absorption. It is not unsafe to say that 
there are still in our country, though perhaj)s not in 
so busy a city as this, modes of studying law quite 



48 MR. dwight's addeess. 

analogous. Some young men in England, of high pur- 
poses, in the last and one or two previous generations, 
perceiving the futility of this scheme, submitted them- 
selves to the voluntary discipline of a special plead- 
er's office, where, for a very large yearly fee, they 
received instruction. The well-known Mr. Tidd had 
four of his pupils sitting at one time in the House of 
Lords, as Law Lords : Lord Lyndhurst, Lord Denman, 
Lord Cottenham and Lord Campbell. The latter 
says : " To the unspeakable advantage of having been 
three years his pupil, I ascribe chiefly my success at 
the bar." Such coincidences as the above cannot 
be fortuitous.* 



* A historical account of the modes of legal education adopted in England, 
and under the Roman law, may not prove uninteresting. The later Roman 
Emperors required a study of the law for five years, commencing with the 
Institutes of Justinian, while certain other portions of the code were assigned 
to be studied during each year. There were well-known law schools estab- 
lished at Rome, Constantinople and Berytus ; the one at Berytus was particu- 
larly famous for several centuries. The Emperor required a yearly account 
of the behavior and progress of the law students, in order that he might 
know what persons to employ in his service. It cannot be supposed, however, 
that all the lawyers in the Roman empire were educated in these law schools. 
They may have been especially established, for the training of those who were 
needed in public employments. Salaries, in some instances, were paid from 
the imperial treasury. During the middle ages, with a single exception, the 
study of the law was closely connected with its practice. If jurisprudence 
was studied at the seminaries, it was as a branch of general education. No 
separate schools existed. The exception was the school at Ravenna, in Italy, 
in the eleventh century, which was probably removed thither from Rome, and 
was afterwards transferred to Bologna, where it became famous. Thus we 
have strong reason to believe, that the Roman School of the empire has 
exerted, by this removal, a marked influence over the legal education ol 
modern times. The university at Bologna deserves special notice. It was 
originally a simple unincorporated law school, which, by the excellence of its 



ME. dwight's addeess. 49 

It is safe to say that the mass of young men, who 
engage in the study of law, commence their work 
with minds undisciplined to the nice distinctions 
and analysis requii-ed for its perfect mastery. It 

instructions, attracted crowds of scholars. The Emperor Frederick I., in 1158, 
granted peculiar privileges to foreign students, and, among others, the right 
to be tried in civil and criminal matters by their professors, or by the bishop of 
the province. This rule was copied from the enactment of Justinian, govern- 
ing the law school at Berytus. At this time the scholars elected their own 
professors. Afterwards, students in the department of theology and medicine 
came thither, and the institution assumed the form of an university, with a 
rector. The law professors were of two classes : ordinary and extraordinary. 
The former read lectures upon certain authoritative books, at which all the 
students were expected to be present ; the latter class lectured upon other 
treatises, and attendance is supposed to have been optional. Besides the formal 
lectures, there were full expositions of particular texts in the law, and ques- 
tions were discussed, which had been previously announced to the disputants. 
As the school at Ravenna, at least, was in operation at the time of the Nor. 
man conquest, and was transferred to Bologna not long after, it is altogether 
probable that the ecclesiastics introduced into England, with the Roman 
Jurisprudence, this mode of studying law. The legal profession apparently had 
an ecclesiastical origin. (See Pearce's Inns of Court, p. 14.) 

The common law of England, however, as far back as the middle of the 
thirteenth century, was studied in the Inns of Court, in a quiet retreat, 
between the City of London and Westminster. These Inns of Court were 
four in number, with preparatory schools called Inns of Chancery. These 
bodies well illustrate the character of the early Englishmen. They were 
voluntary associations, and unincorporated. They granted degrees in Muni- 
cipal Law, and the barrister went to the bar without any authority except 
that granted by the heads of the Inn to which he belonged ; the Judges had 
a private visitatorial power over the authorities in each Inn, probably 
because they were the chief men in the law, but they could not require the soci- 
ety to add any person to their number unless they saw fit, while no one could 
become a barrister in any other way than by belonging to one of these Inns, 
not even by letters patent. These four Inns stood on an equality, so as to 
form a kind of university. The Inns of Chancery, as has been mentioned, 
were preparatory schools, in which were taught the grounds and principles of 
law. Such men as Coke and Holt delivered lectures, while "mootings" 
and viva voce exercises occupied the students and prepared them for 
practice. Fortescue gives a pleasing account of these schools in his time. 



50 ME. D wight's addeess. 

is also a growing complaint tliat tlie yonnger 
members of the profession are untrained in its prin- 
ciples, tliat they make the law a trade, a mere 
mechanical employment ; that instead of being artists 

He says that " the students resorted thither in great numbers, to be taught as in 
common schools. Here was a school of commendable qualities. Here they 
learn to sing and to exercise themselves in all kinds of harmony. On the work- 
ing days they study law, on the holy days Scripture, and their demeanor is like 
the behavior of such as are coupled together in perfect amity. There is no 
place where are found so many students past childhood as here." The labor 
of preparing lectures grew irksome after a time : the readers of lectures, on 
their appointments, were expected to give costly entertainments to the stu- 
dents, and the lectures, as a consequence, ceased to be read. Every advance- 
ment in the degrees of the students themselves " was attended with a position 
at the cupboard (a very desirable station), or with a garnish of wine." 

Some curious details are given, by the authors cited below, of the masquer- 
ades and revelings at these Inns. In time, the requisitions for the prelimina- 
ry admission became merely nominal. The students were examined in the 
classics, not to see whether they were scholars, but " to ascertain how they 
had spent their time before coming to the Inn, and whether they had the 
manners of gentlemen." The requisites for admission to practice, after 
becoming a student, mainly consisted in having eaten a certain number of 
dinners, in each year, for a fixed number of years, in the common hall. 
Latterly there has been a disposition to revive some part of the old plan of 
instruction. The present course is, to give lectures in the Inns, while those 
students, who wish to obtain position at the bar, employ a special pleader to 
teach them, in addition, and they also attend the discussions in the moot 
courts. The Lord Chancellor of Ireland, in a paper read before the Socie- 
ty for the Advancement of Social Science, reported in the London Jurist, of 
October 22d, 1858, after strongly insisting on the necessity of a more tho- 
rough classical and legal training among the members of the bar, predicts 
that the Inns of Court will soon adopt some effectual plan for increasing the 
attainments of law students. On the Continent, law schools arose in the four- 
teenth century, being formed on the plan of the Bolognese School. In Ger- 
many, for instance, all who are intrusted with legal business must receive 
their instruction under regular law professors. For full details of the school 
at Bologna, see " Savigny's Geschichte des Romischen Rechts," vol. 1, chap. 
6; vol. Sd, pages 152, 212, and for English system, see " Pearce's Inns of 
Court," " Herbert's do.," "Duhigg's King's Inns, "Fortescue de Laudibus," 
&c., &c., &c. 



MK. dwight's address. 51 

in tlieir profession, tliey are content witli being arti- 
sans. Perliaps we may yet have to carry out Lord 
Bacon's suggestion, that there should be a civil repre- 
hension from the Bench of those advocates who bring 
to the case slight information, or are guilty of gross 
neglect, or who undertake an overbold defense. It is 
consolatory, however, to know that this class of men is 
not new to the profession, and that we are not so greatly 
degen crating. When old Lord Chancellor Hatton, some 
centuries ago, was addressing the bar on one occasion, 
he said: "I find that there are at the bar many 
unmeet young men, very raw and young men, negli- 
gent and careless, which truly, in my opinion, is a 
great sin and fault that we should commit our rights 
of goods and persons to such men." 

It is unnecessary to say one word as to the evil 
inflicted upon the commmiity by an ignorant bar. 
But it ought to be said that the leading members of 
the profession are themselves partly responsible for 
its existence. The standard of admission to practice 
has been placed too low. If, however, the recent rule 
of the Supreme Court is fully carried into effect, 
introduced, as I personally know, from the most 
praiseworthy motives, by one of the judges who longs 
for higher attainments among law students, and 
seconded, as it appears to have been, with earnest 



52 ME. D wight's addeess. 

ness by Ms brethren, mucli will be achieved. It 
introduces a new feature into many of our examina- 
tions, in that the student must be examined upon 
legal principles, and not merely upon practice. 

It is at this point that law schools find their justi- 
fication and found their claim to support. In my 
judgment, they ought, in this country, when fully 
organized, to combine both the gymnasium and the 
university. They should train the student and teach 
him how to study, and after the work is done, or 
while it is being done, communicate information on 
special topics by full courses of lectures. The period 
of study should be long enough to accomphsh both 
results. The instruction should mainly be scientific; 
so far as it can at the same time be practical, it must 
be. While, on the one hand, a law school should not 
be a mere school of practice, on the other hand, it 
should not prepare its students to be mere lovers of 
the science of law. They should be lawyers, or, at 
least, their studies so shaped as not to give them a 
distaste for the practical side of the profession. It is 
our belief, then, that a mere system of lectures, which 
might, in a foreign country, be sufficient for a listener 
who had previously passed through a course of tho- 
rough preliminary study, is not applicable in a coun- 
try where there is no path to the profession pre- 
scribed by law or public opinion, and where any adult 



ME. dwight's addeess. 53 

male citizen, without sucli training, may claim its 
lienors or degrade it by Ms unworthiness * 

We would not close this subject without stating 
our ^dew, that at the foundation of all our law lies 
the doctrine of a true morality. The law, itself, is 
beneath all our constitutions, and without it no con- 
stitution is possible — at least, this law that the 
minority yield to the majority, with another equally 
important, that the majority hold their power only 
in trust for the general good. " Underneath our mu- 
nicipal law," says an old author, " is the law eternal, 
which ought to be always before our eyes, as being of 
principal force and moment to breed in human minds 
a dutiful estimation of all laws, because there can be 
no doubt that laws apparently good are copied out of 
the very tables of that high and everlasting law, not 
as if men did behold those tables, and accordingly 
frame those laws, but because it worketh in them, be- 
cause it unfolds itself by them when the laws which 
they make are righteous." We are not exempted, as 

* Since the above was written, I have been gratified to meet with the follow- 
ing passage in a work on the study of the Roman law, by Prof. Veyrieres, law 
professor in Paris — he says : "In studying the civil law, it is necessary to pre- 
sent to the pupil its history, in order to show the connection of the different 
rules. It is also necessary to give exact definitions, whose precision shall be 
equal to their clearness — without the aid of good definitions, logical divisions, 
and recapitulations, succinct but accurate, which are as it were a species of 
definitions, and superior to them, the lectures of the professor {I speak from 
experience) are but idle words thrown out to the wind, while nothing, or next 
to nothing, is retained by the hearers." 



advocates, either, from tlie etliical rules wliicli bind 
other men. On this point it is to be feared that the 
average public sentiment in the profession is too 
low. Men must not draw a nice distinction between 
private honor and professional honor. The one 
is as truly delicate as the other. Nor do we or the 
community feel sufficiently the close connection be- 
tween the high character of the legal profession and 
the well-being of the State. The fact, that the laws 
are complete, is of no consequence, unless we have 
true men to administer them. The best laws, like 
machinery, are capable of having their power per- 
verted. Law itself is inert; a mere abstract state- 
ment ; as abstract as a mathematical proposition. It 
is but the major premiss of a syllogism. It is the 
advocate and judge who give it vitality and power. 
Both are ministers of justice. Each holds a high 
trust, to do no act which shall disturb the well-being 
of the Commonwealth. History and experience, 
alike, teach us that lawyers without principle may do 
unlimited harm. There have been those to whom 
Sallust's remark applied, that it was a great reward 
to them if they could only disturb those things which 
were previously quiet.* 

*The Roman jurist Ulpian had a high idea of the true dignity of his 
profession. He says: "We are properly called priests — we worship justice, 
profess the knowledge of good and evil, separating the just from the unjust, 
discerning the lawful from the unlawful, and, unless I am mistaken, desire a 
true and not a false philosophy." 



ME. D wight's addeess. 55 

Gentlemen of tlie Law Class, we invite you, tlien, 
to a course of study and of diligent labor. This 
science cannot be learned without study. We hope, 
however, to smooth the pathway to the subject, and 
to lighten, somewhat, the labors of the ascent. You 
may not reach the meaning of the principle at once. 
Be not discouraged, for, on a second perusal, or at 
some other time, it will become clear. 

We would hope, in the language of Lord Coke, 
" that we may open some windows of the law, to let 
in more light to the student, by diligent search to 
see the secrets of the law, or to move him to doubt, 
and to enable him to inquire and to learn of the 
sao^es what the law, too:ether with the true reason 
thereof, is, knowing, for certainty, that the law is 
unknown to him that knoweth not the reason thereof" 
— while we would extend to you, as a greeting, what 
he uttered as a farewell : " We wish unto you the 
gladsome light of jurisprudence, the loveliness of 
temperance, the stability of fortitude, and the solidity 
of justice." 



AN APOLOGY 



FOR THE 



STUDY OF ENGLISH, 



DELIVERED 



BY GEORGE P. MARSH, 



ON 



MONDAY, NOVEMBER 1, 1858, 

INTRODUCTORY TO A SERIES OF LECTURES IN THE POST- 
GRADUATE COUTISE OF 

COLUMBIA COLLEGE, NEW YORK. 



ADDRESS. 



The severe Roman bestowed upon the language of 
his native land the appellation of patrius sermo^ the 
paternal speech; but we, deriving from the domes- 
ticity of Saxon life a truer and tenderer appreciation 
of the best and purest source of linguistic instruction, 
more ha23pily name our home-born English the mother 
tongue. The tones of the native language are the 
medium through which the affections and the intel- 
lect are first addressed, and they are to the heart and 
the head of infancy what the nutriment drawn from 
the maternal breast is to the physical frame. 
"Speech," in the words of Heyse, "is the earliest 
organic act of free self-consciousness, and the sense 
of our personality is first developed in the exercise 
of the faculty of speech." Without entering upon 
the speculations of the Nominalists and the Realists, 
we must admit that, in that process of ratiocination 
properly called ihouglit^ the mind acts only by words. 
" Cogito^ ergo sum^ I think, therefore I am," said 
Descartes. Whether this is a logical conclusion or 
not, we habitually, if not necessarily, connect words, 
thought, and self-recognizing existence, as conditions 
each of both the others, and hence it is that we 



60 ME. maesh's addeess. 

have little or no recollection of tliat portion of our 
life wliicli preceded our acquaintance with, language. 
Indeed, so necessary are words to thought, to 
reflection, to the memory of former states of self- 
conscious being, that though the intelligence of 
persons horn without the sense of hearing some- 
times receives, through the medium of manual signs, 
and without instruction in words, a very consid- 
erable degree of apparent culture, yet, when deaf 
mutes are educated and taught the use of verbal 
language, they are generally almost wholly unable to 
recall their mental status at earlier periods; and, so 
far as we are able to judge, they appear to have been 
devoid of those conceptions which we acquire, or, at 
least, retain and express, by means of general terms. 
So our recollection of moments of intense pain or 
pleasure, moral or physical, is dim and undefined. 
Grief too big for words, joy which finds no articulate 
voice for utterance, sensations too acute for descrip- 
tion, when once their cause is removed, or when time 
has abated their keenness, leave traces deep indeed 
in tone, but too shadowy in outline to be capable of 
distinct reproduction ; for that alone which is precise- 
ly formulated can be clearly remembered. 

Nature has made speech the condition and vehicle 
of social intercourse, and consequently it is essentially 
so elementary a discipline, that a thorough knowl- 



MR. marsh's address. 61 

edge of the motLer tongue seems to be presupposed 
as tlie basis of all education, and especially as an 
indispensable preparation for the reception of aca- 
demic instruction. It is, doubtless, for this reason, 
that the study of the English language has usually 
been almost wholly excluded from the collegial 
curriculum, and recently, indeed, from humbler semi- 
naries in our American system of education, and, 
therefore, so great a novelty as its abrupt transfer 
from the nursery to the auditorium of a post-gradu- 
ate course may seem to demand both explanation 
and apology. 

It is a trite remark, that the national history and 
the national language begin to be studied only in 
their decay, and scholars have sometimes shown an 
almost superstitious reluctance to approach either, 
lest they should contribute to the aggravation of a 
symptom, whose manifestation might tend to hasten 
the catastrophe of which it is the forerunner. In- 
deed, if we listen to some of the voices around us, 
we are in danger of being persuaded that the 
decline of our own tongue has not only commenced, 
but has already advanced too far to be averted or 
even arrested. If it is true, as is intimated by the 
author of our most widely-circulated dictionary 
— a dictionary which itself does not exj)lain the 
vocabulary of Paradise Lost — that it is a violation 



62 



of tlie present standard of good taste to employ old 
English words not used by Diyden, Pope, Gray, 
Goldsmitli and Cowper ; if words whicli enter into 
the phraseology of Spenser, and Shakspeare, and 
Milton, though important "to the antiquary, are 
useless to the great mass of readers;" and, above 
all, if the dialect of the authoritative standard of 
the Christian faith, in the purest, simplest, and most 
beautiful form in which it has been presented to 
modern intelligence, is obsolete, unintelligible, for- 
gotten, then, indeed, the English language is decayed, 
extinct, fossilized, and, like other organic relics of the 
past, a fit subject for curious antiquarian research 
and philosophic investigation, but no longer a theme 
of living, breathing interest. 

In reasoning from the past to the present, we are 
apt to forget that Protestant Christianity and the 
invention of printing have entirely changed the out- 
ward conditions of at least Gothic, not to say civilized, 
humanity, and so distinguished this new phase of 
Indo-European life from that old world which lies 
behind us, that, though all which was true of indi- 
vidual man, in the days of Plato, and of Seneca, and 
of Abelard, is true now, yet most which was con- 
ceived to be true of man as a created and dependent, 
or as a social being, is at this day recognized as either 
false or abnormal. The reciprocal relations between 



MK. MAKSIl's ADDRESS. 63 

tlie means and the ends of human life are reversed, 
and the conscions, deliberate aims and voluntary pro- 
cesses and instrumentalities of intellectual action are 
completely revolutionized. Hence, we are constantly 
in danger of error, when, in the economy of social 
man, we apply ancient theories to modern facts, and 
deduce present effects or predict future consequences 
from causes which, in remote ages, have produced 
results analogous to recent or exj)ected phenomena. 
This is especially true with reference to those studies 
and those pursuits which are less immediately con- 
nected with the fleeting interests of the hour. We 
are, accordingly, not warranted in concluding that, 
because the creative spirits of ancient and flourishing 
Hellenic literature did not concern themselves with 
grammatical subtleties, but left the syntactical and 
orthoepical theories of the Greek language to be 
developed in late and degenerate Alexandria, there- 
fore the study of native philology in commercial 
London and industrial Manchester proves the deca- 
dence of the heroic speech, which in former centuries 
embodied the epic and dramatic glories of English 
genius. 

The impulse to the study of English, and especially 
of its earlier forms, which has lately begun to be felt 
in England and in this country, is not a result of the 
action of domestic causes. It has not grown out of 



64 



anything in tlie political or social condition of tte 
Englisli and American people, or out of any morbid 
habit of the common language and literature of 
both, but it had its origin wholly in the contagion 
of Continental example. The jealousies and alarms 
of the turbulent period which followed the first 
French Revolution, and which suspended the inde- 
pendent political existence of so many of the minor 
European States, and threatened all with ultimate 
absorption, naturally stimulated the self-conscious 
individuality of every race, and led them alike to 
attach special value to everything characteristic, 
everything peculiar, in their own constitution, 
their own possessions, their own historic recollec- 
tions, as conservative elements, as means of resistance 
against an influence which sought, first, to denation- 
alize, and then to assimilate them all to its own 
social and governmental system. Hence, contem- 
poraneously with the wars of that eventful crisis, 
there sprang up a universal spirit of local inquiry, 
local pride, and local patriotism; the history, the 
archaeology, the language, the early literature, of 
every European people, became objects of earnest 
study, first with its own scholars, then with allied 
nations or races, and, finally, by the power of inter- 
national sympathy, and the unexpected light which 
•etymological researches have thrown on some of the 



MR. marsh's address. 65 

most interesting questions belonging to present psy- 
chology and to past history, witli enlightened and 
philosophic thinkers everywhere. 

The people of England were less agitated by the 
fears which disturbed the repose of the Continental 
nations, and they are constitutionally slow in yield- 
ing either to moral, to intellectual, or to material 
impulses from without. Accordingly, while the 
philologists and historians of Denmark and of Ger- 
many were studiously investigating and elucidating 
the coui'se of Anglo-Saxon history, the laws of the 
Anglo-Saxon language, and the character of its 
literature, as things cognate with their own past 
glories and future aspirations, few native English 
inquirers busied themselves with studies, whose 
obscure, though real, connection with the stirring 
events of that epoch no timid sensitiveness had yet 
taught the British mind to feel. 

But although the interest now manifested in the 
history and true linguistic character of the English 
speech originated in external movements, yet it must 
be admitted that it is, at this moment, strengthened 
in England by a feeling of apprehension concerning 
the position of that country in coming years — an 
apprehension which, in spite of occasional manifesta- 
tions of hereditary confidence and pride, is a very 
widely-prevalent sentiment among the British peo- 



66 ME. maesh's addeess. 

pie. Recent occurrences have inspired an anx- 
iety amounting almost to alarm, in reference to their 
relations witli their nearest, as well as their more 
remote. Continental neighbors, and those, who know 
that twice in the seventeenth centnry England was 
fast drifting towards a vassalage to France, may well 
he pardoned for some misgivings with regard to the 
present tendencies of the British social and political 
state. In such circumstances, it is natural that 
enlightened Englishmen should cherish a livelier 
attachment to all that is great and reverend in the 
memories of their early heing, and thought, and 
action, and should regard with increasing interest the 
records that recount the series of intellectual and 
physical triumphs by which the Anglo-Saxon and 
the Norman raised the Empire they successively 
conquered to such an unexampled pitch of splendor 
and of power. 

Modern philology, then, did not, like ancient 
grammatical lore, originate in the life-and-death 
struggle of perishing nationalities, nor in a morbid 
consciousness of internal decay and approaching dis- 
solution, but in a sound, philosophic appreciation of 
the surest safeguard of national independence and 
national honor — an intelligent comprehension, namely, 
of what is good and what is great in national history, 
national institutions, national character. It is a pul- 



MK. MAIlSIl'rt ADDIIESS. 6*7 

sation of life, not a tliroc of death ; a token of regen- 
eration, not a sign of extinction. Tlie zeal with which 
these studies are pursued is a high expression of 
intellectual patriotism, a security against the perils 
of absorption and centralization whicli arc again 
menacing, the commonwealths of the Eastern Con- 
tinent, a bulwark against the dangers with which 
what exists of Continental liberty is threatened, now 
by the luxurious over-civilization which follows a 
wide and successful commerce, now by Muscovite 
barbarism, and now by pontifical oljscurantism. 

The fruits of increased attention to domestic phil- 
ology have been strikingly manifested in the reviving 
literatures, and the awakening moral and political 
energies, of many lesser Euro2)ean peoples, which, 
until the agitations I speak of, seemed to be fast sink- 
ing into forgetfulness and inaction. States and races, 
long deemed insignificant and decrepit, have given a 
new impulse to the intellectual movement of our age, 
and, at the same time, are throwing up new barricades 
against the encroachments of the great Continental 
despotisms. Denmark, Norway, Sweden, Poland, 
Bohemia, Hungary, have roused themselves to the 
creation of new lett(>rs, and the manifestation of a 
new popular life. The Europe of to-day is protest- 
ing against being Teutonized, as energetically as did 
the Europe of 1800 against conformity to a Gallic 



68 ME. 

organization, and we may well hope tliat the same 
spirit will be found equally potent to resist the 
Panslavic invasion, which is the next source of 
danger to the civil and the intellectual liberties of 
Christendom. 

There are circumstances in the inherent character 
of the Enghsh language which demand — ^there are 
circumstances in its position which recommend — ^the 
most sedulous and persevering investigation. I will 
not here speak of what belongs to another part of 
our course — the general value and importance of 
linguistic inquiry — but I will draw your attention to 
the multifarious etymology of our Babylonish vocabu- 
lary, and the composite strnctrue of our syntax, as 
peculiarities of the English tongue not shared in an 
equal degree by any other European speech known 
in literature, and which require an amount of system- 
atic study not in other cases usually necessary. The 
ground-work of English, indeed, can be, and best is, 
learned at the domestic fireside — a school for which 
there is no adequate substitute ; but the knowledge 
there acquired is not, as in homogeneous languages, 
a root, out of which will spontaneously grow the 
flowers and the fruits which adorn and enrich the 
speech of man. English has been so much affected 
by extraneous, alien, and discordant influences, so 
much mixed with foreign ingredients, so much over- 



iviE. marsh's address. 69 

loaded witli adventitious appendages, tliat it is, to 
most of tliose wlio speak it, in a considerable de- 
gree, a conventional and arbitrary symbolism. The 
Anglo-Saxon tongue lias a craving appetite, and is as 
rapacious of words, and as tolerant of forms, as are 
its children of territory and of religions. But, in 
spite of its power of assimilation, tliere is mucli of 
the speech of England which has never become con- 
natural to the Anglican people, and it has passively 
suffered the introduction of many syntactical com- 
binations, which are not merely irregular, but repug- 
nant. It has lost its original organic law of progress, 
and its present growth is by accretion, not by devel- 
opment. I shall not here inquire whether this 
condition of English is an evil. There are many cases 
where a [complex and cunningly-devised machine, 
dexterously guided, can do that which the congenital 
hand fails to accomplish ; but the computing of our 
losses and gains, the striking of our linguistic balance, 
belongs elsewhere. Suffice it say, that English is not 
a language which teaches itself by mere unreflecting 
usage. It can only be mastered, in all its wealth, in 
all its power, by conscious, persistent labor; and, 
therefore, when all the world is awaking to the value 
of general philological science, it would ill become us 
to be slow in recognizing the special importance of 
the study of our own tongue. 



YO ME. MAESh's ADDEESS. 

But, in order tliat tMs study may commend itself to 
the popular mind, its value and its interest must first 
be made apparent to tlie thinking spiiits by wliom 
tlie current of public opinion is determined. Knowl- 
edge lias its sources on tlie heights of humanity, and 
culture derives its authority from the example of the 
acknowledged leaders of society. Studies which are 
neglected or undervalued by the educated man, will 
have still less attraction for the pupil and his teacher, 
and English philology cannot win its way to a form 
in American high-schools, until it shall have been 
recognized as a worthy pursuit by the learned and the 
wise, who are no longer subject to the authority of 
academic teachers. 

But, great as is the practical importance of the 
knowledge of words, let it not be said that, for its 
sake alone, we encourage inquiry into the structure 
and constitution of our national speech. The dis- 
cipline we advocate embraces a broader range, and 
extends itself to the scientific notion of philology, 
which, though familiar in German literature, has not 
yet become the recognized meaning of the word in 
English. The course we propose includes, naturally 
and necessarily, the study of those old English 
writers, in whose works we find, not only the most 
forcible forms of expression, but a marvelous afflu- 
ence of the mighty thoughts, out of which has grown 



ME. ]\rARSIl's ADDRESS. Tl 

tlie action that has made England and her children 
the wonder and the envy of the world. Indeed, 
with respect to the technicalities of grammar and 
etymology, the radical forms of structure which 
characterize our ancient tongue, the American student 
has but narrow means of original research. His 
investigations must, for the present, be pursued at 
second-hand, by the aid of materials inadequate in 
themselves, and, too often, collected with little j iidg- 
ment or discrimination. The standard of linguistic 
science in England is comparatively low. British 
scholars have produced few satisfactory discussions 
of Anglo-Saxon or Old English inflectional or struc- 
tural forms, and it is to Teutonic zeal and talent that 
we must still look for the elucidation of most points 
of interest connected with either the form or the 
signification of primitive Enghsh. A large pro- 
portion of the relics of Anglo-Saxon and of early 
English literature remains still unpublished, or has 
been edited with so little sound learning and critical 
ability as to serve less to guide than to lead astray. 
Hence, in the determination of ancient texts, we 
must often accept hasty conjecture, or crude opinion, 
in place of established fact. But a better era has 
commenced. Englishmen are learning, from Conti- 
nental linguists, to do what native scholarship and 
industry had hitherto proved unable to accomplish ; 



72 ME. marsh's address. 

and Tve may hope tliat, at no distant day, tlie yet 
hidden treasures of British philology will all be 
made accessible, and permanently secured for future 
study, by means of the art which has been styled 

AeS OMiq^IUM ArTIUM CoiN^SERVATRIX. 

The general inferiority of English and French to 
Scandinavian and Teutonic scholars, in philological 
and especially etymological research, is a remarkable, 
but an indisputable fact, and its explanation is not 
obvious. I can by no means ascribe the difference 
to an inherent inaptitude on our part for such subtle 
investigations, to a native insensibility to the delicate 
relations between allied sounds and allied significa- 
tions ; but I believe the cause to lie much in the 
different intellectual habits which are formed in early 
life, by the use of the respective languages of those 
nations. The Grerman is remarkably homogeneous in 
its character. An immense proportion of its vocabu- 
lary consists either of simple primitives, or of words 
obviously compounded or derived from radicals, 
which still exist in current use as independent voca- 
bles. Its grammatical structure is of great regularity, 
and there are few tongues where the conformity to 
general rules is so universal, and where isolated, 
unrelated philological facts are so rare. At the 
same time, there is enough of grammatical inflec- 
tion to familiarize the native speaker with syntac- 



ME. maesh's addeess. Y3 

tical principles imperfectly exemplified in French 
and Englisli, and a sufficiently complex arrangement 
of the period to call into constant exercise the 
logical faculties required for the comprehension of 
the rules of universal grammar. ' While, therefore, 
I by no means maintain that German has any 
superiority over English for the purposes of poetry, 
of miscellaneous literature, the intercourse of society, 
or the ordinary cares and duties of life, yet as, in 
itself, an intellectual, and especially a linguistic 
discipline, it has great advantages over any of the 
tongues which embody the general literature of 
modern Europe. The German boy comes out of 
the nursery scarcely a worse grammarian, and a ftxv 
better etymologist, than the ancient Roman, and 
is already imbued with a philological culture which 
the Englishman can only acquire by years of painful 
study. Hence, we account readily for the com- 
parative excellence of German dictionaries and other 
helps to the full knowledge of the language, while 
in English, having no grammar — we have till lately 
possessed no grammars, and we still want a dic- 
tionary. In both English and French, the ety- 
mology is foreign, or obscured by great changes of 
form, "the syntax is arbitrary and conventional (so 
far as those terms can be applied to anything in 
language), the inflections are bald and imperfectly 



74 



distinguislied, and the number of solitary exceptional 
facts, especially in French, is very great. When I 
speak of the poverty of French inflections, I am 
aware I contradict the accidence, which shows- a 
very full system of varied terminations, but the na- 
tive language is learned by the ear, and the spoken 
tongue of France reduces its multitude of written 
endings to a very small list of articulated ones. The 
signs of number and of person, and often of tense and 
gender, to which the inflections are restricted, though 
well marked in written French, disappear almost 
wholly in pronunciation, and for those who only 
speak, they are non-existent.* While, therefore, for 
speaking French by rote, as natives do all tongues, 
no grammar is needed, yet few written dialects re- 
quire grammatical aid more imperiously; while, at 
the same time, the grammar is of so special a char- 
acter as to teach little of general linguistic prin- 
ciple. 

The German philologist, then, begins where the 
Englishman and the Frenchman leave off — or, rather, 
at a point to which the great mass of French and 
English literary men never attain ; and, with such 
an advantage m the starting ground, it would be 
strange if he did not surpass his rivals. 

* Aimais, aimait, aimaient are identical in sound ; and aimer, aimez, 
aimai, aime, aimes, and aimees differ so little from the former group, that 
ignorant persons often confound them all in writing, as well as in speaking. 



3fR. maesh's address. 75 

The American student shares with the English- 
man and the Fi'enchman in the defect of early 
grammatical discipline, and, possessing few large 
libraries, no collections of rare early editions, no 
repositories of original manuscripts, he labors 
under the further inconvenience of a want of access 
to the primitive sources of etymological instruction. 
For the present, therefore, he must renounce the 
ambition of adding anything to the existing stores 
of knowledge respecting English philology, and 
content himself with the humbler and more selfish 
aim of appropriating and elaborating the material 
which more fortunate or better-trained European 
scholars have gathered or discovered. We must, in 
the main, study English with reference to practical 
use, rather than to philosophic principle ; aim at the 
concrete, rather than the absolute and the abstract. 
And this falls in with what is eminently, I will not 
say happily, the present tendency of the American 
mind. We demand, in all things, an appreciable, 
tangible result, and if a particular knowledge can- 
not be shown to have a value^ it is to little purpose 
to recommend its cultivation because of its worth. 
We must all, then, men of action and men of 
thought, alike, study English in much the same way, 
and by the aid of the same instrumentalities — the 
practical man, because he aims at a practical end; 



76 ME. maesh's addeess. 

the pliilosopliic tliinker, because lie is destitute of 
tlie means of approximating to his end by any- 
higher method than the imperfect course which 
alone is open to the American scholar. 

There are circumstances which recommend the 
study of English specially to us Americans, others 
which appeal equally to all who use the Anglican 
speech. Of the former, most prominent is the fact 
that we, in general, require a more comprehensive 
knowledge of our own tongue than any other people. 
Except in mere mechanical matters, and even there 
far more imperfectly, we have adopted the principle 
of the division of labor to a more limited extent than 
any modern civilized nation. Every man is a dab- 
bler, if not a master, in every knowledge. Every 
man is a divine, a statesman, a physician, and a lawyer 
to himself, as well as a counsellor to his neighbors, 
on all the interests involved in the sciences a23pro- 
priately belonging to those professions. We all 
read books, magazines, newspapers, all attend learned 
lectures, and too many of us, indeed, write the one, 
or deliver the other. We resemble the Margites 
of Homer, who iioXV ijifidraTo t'pya, practiced every art, 
and if, as he xaxw? 5' ^•nVTa-ro rravra, bungled in all, we, 
too, must fall short of universal perfection, we still 
need, with our multifarious strivings, an encyclopedic 
training, a wide command over the resources of 



ME. marsh's address. 77 

our iicative tongue, and, more or less, a knowledge 
of all its special nomenclatures. But tliis very fact 
of tlie general use* of tte whole EnglisL. vocabulary 
among us is a dangerous cause of corruption of 
speech, against which, the careful study of our 
language is an important antidote. Things much 
used inevitably become much worn, and it is one of 
the most curious phenomena of language, that 
words are as subject as coin to defacement and abra- 
sion, by brisk circulation. The majority of those 
who speak any tongue incline to speak it imperfectly, 
and where all use the dialect of books, the vehicle of 
the profoundest thoughts, the loftiest images, the 
most sacred emotions, that the intellect, the fancy, 
the heart of man has conceived, there special precau- 
tions are necessary, to prevent that medium from 
becoming debased and vulgarized by corruptions of 
form, or, at least, by association with depraved beings 
and unworthy themes. While, therefore, I would open 
to the humble and the unschooled the freest access 
to all the rich treasures which English literature 
embodies, I would inculcate the importance of a 
careful study of genuine English, and a conscientious 
scrupulosity in its accurate use, upon all who in any 
manner occupy the position of teachers or leaders of 
the American mind, all whose habits, whose tastes, 
or whose vocations, lead them to speak oftener than 
to hear. 



78 MB. maesh's addeess. 

But, as I observed, tliere are considerations, com- 
mon to the Englishman and tlie American, whicli 
powerfully recommend tlie study of our language to 
thinking men. One of the most important of these 
is a repetition of the argument I have just used, 
but in a more extended application. I allude to 
what, for want of any other equally appropriate 
epithet, I must characterize by a designation much 
abused both by those who rally under it as a watch- 
word of party, and by those to whom it is a token of 
offense — I mean the conservatism of such studies. It 
is doubted, by the ablest judges, whether, except in 
the introduction of new names for new things, Eng- 
lish has made any solid improvement for two centu- 
ries and a half, and few are sanguine enough to 
believe that future changes in its structure, or in its 
vocabulary, unless in the way just stated, will be 
changes for the better. It is obvious, too, that, in 
proportion as new grammatical forms, and new desig- 
nations for familiar things and thoughts, are intro- 
duced, older ones must grow obsolete, and, of course, 
the existing, and, especially, the earlier literature of 
England, will become gradually less intelligible. The 
importance of a permanent literature, of authori- 
tative standards of expression, and, especially, of 
those great, lasting works of the imagination, which, 
in all highly-cultivated nations, constitute the " vol- 



MR. marsh's address. T9 

umes paramount'''^ of tlieir literature, has beeu too 
generally appreciated to require here argument or illus 
tration. Suffice it to say, they are among the most 
potent agencies in the cultivation of the national 
mind and heart, the strongest bond of union in a 
homogeneous people, the surest holding ground 
against the shifting currents, the ebb and flow of 
opinion and of taste. 

Now, the Anglo-Saxon race is fortunate in possess- 
ing more such volumes paramount than any other 
modern people. The Greeks had their moral and 
sententious Hesiod; their great tragic trio; their 
comic Aristophanes and Menander ; they had Hero- 
dotus, and Thucydides, and Plato, and Xenophon ; and, 
above all, their epic Homer, whose story and whose 
speech were more closely interwoven with the very 
soul of the whole Hellenic people than was ever other 
secular composition with the life of man; the Romans 
had Ennius, and Terence, and Plautus, and, at last, 
but only when all was lost, Horace, and Virgil, and 
Cicero ; the Italians have Dante, and Petrarch, and 
Tasso, and Ariosto ; the Icelanders have Laxdsela, 
the story of Njdll, and the Chronicles of Snorro ; and 
we, more favored than all, have Chaucer, and Spen- 
ser, and Bacon, and Milton, and Shakspeare — each, 
in his own field, as great as the mightiest that ever 
wielded the pen in the like kind; and, beyond all 



80 ME. maesh's addeess. 

these, we liave the oracles of our faitli, stamped witli 
the self-approving impress of certain verity, and ren- 
dered, "by English pens, in a form of rarer beauty 
than has elsewhere clothed the words of God in the 
speech of man. 

Now, all these books have been for centuries a 
daily food, an intellectual pabulum, that actually has 
entered into and moulded the living thought and 
action of gifted nations; and, in the case of the 
Anglican people, it will not be disputed that, work- 
ing, as they have, all in one direction, their great 
authors have been more powerful than any other 
influence in first making, and then keeping, the 
Englishman and the American what they are, what 
for hundreds of years they have been, what, Grod 
willing, for thousands they shall be, the pioneer race 
in the march of man towards the highest summits of 
worthy human achievement. The path of national 
literature is that of those comets which long ap- 
proach the central orb, and long recede, but never 
return to the perihelion, and the language of a people 
has ordinarily but one period of culmination. When 
genius has evolved the best thoughts of a given state 
of society, and elaborated the choicest forms of 
expression of which a given speech is capable, it has 
anticipated and appropriated the greatest results of 
that condition of human life, and subsequent htera 



ME. MAESHS ADDEESS. 81 

ture is but reproductive, not creative in its character, 
until some mighty, and, for the time, destructive 
revolution, has dissolved and re-amalgamated the 
elements of language and of social life in new and 
diverse combinations. 

That the English tongue, and the men who speak 
it, will yet achieve great victories in the field of 
mind, great works in the world of sense, we have 
ample self-conscious assurance; but, in the existing 
state of society, it is vain to expect that any future 
literary productions can occupy the place, or exert 
the deep-pervading influence, of the volumes I have 
named. To them, therefore, and to the dialect which 
is their vehicle, the instinct of self-preservation impels 
us tenaciously to cling, and when, through our appetite 
for novelty, our incurious neglect of the beautiful and 
the great, these volumes cease to be authorities in 
language, standards of moral truth and sesthetical 
beauty, and inspiriters of thought and of action, we 
shall have lost the springs of national greatness, which 
it most concerned us to preserve. 

We hear much, in political life, of recurrence to 
first principles, and startling novelties not unfre- 
quently win their way to popular acce23tance under 
that disguise. With equal truth, and greater sin- 
cerity, we may say that, in language and in literature, 
nothing can save us from ceaseless revolution but a 



82 



frequent recourse to the primitive authorities and 
the recognized canons of highest perfection. 

In commencing the study of early Englishy young 
persons are not unfrequently repelled by differences 
of form, which seem to demand a considerable 
amount of labor to master. Unhappily, English 
scholars,, themselves often better instructed in other 
tongues than in their own, have very frequently 
sanctioned the mistake^ and encouraged the indolence 
of cotemporary readers^ by editing modernized edi- 
tions of good old authors^ and, in thus clothing them 
aneWj so changed their outward aspect, and often 
their essential character, that the parents would 
scarcely be able to recognize their own progeny. 
The British press has teemed with disgracefully- 
mutilated and disguised editions, while scrupulously 
faithful reprints of early English works have, until 
lately, not been often attempted,, or ever well encour- 
aged. As a general rule, in the republication of 
works which genius and time have sealed with the 
stamp of authority, no change whatever, except the 
correction of obvious typographical errors, should be 
tolerated, and even these should be ventured on only 
with extreme caution, because it often turns out that 
what is hastily assumed to have been a misprint, is, 
in fact, a form deliberately adopted by a writer, 
better able to judge what was the true orthography 
for the time, than any later scholar can be. 



ME. MAKSHS ADDEESS. 83 

The rule of Coleridge has nowliere a juster appli- 
cation tlian here : That, when we meet an apparent 
error in a good author, we are to j)i*esunie ourselves 
"ignorant of his understanding, until we are certain 
that we understand his ignorance." The number of 
scholars who are so thoroughly possessed of the 
English of the sixteenth, not to mention earlier 
centuries, as to be safely entrusted with the cor- 
rection of authors of that period, is exceedingly 
small, and I doubt whether it would be possi- 
ble to cite a sino-le instance where this has been 
attempted, without grievous error, while, in most 
cases* the book has been not merely lessened in 
value, but rendered worse than useless for all the 
purposes of philology and true literature."* 

* I will, at tlie risk of the imputation of hypercriticism, illustrate bj a 
single instance: The recently-discovered manuscript of the Earl of Devon- 
shire's translation of Paleario's Treatise on the Benefits of Christ's Death 
is evidently a copy, made by an ignorant transcriber, and its orthography is 
extremely incorrect and variable. In preparing it for the press, it was, unfor- 
tunately, deemed expedient to reform the spelling, for the sake of making it 
more uniform and intelligible, as well as correct, and the task has been exe- 
cuted with great care, and in as good faith as the erroneous principle 
adopted would admit of. As a frontispiece, a fac-simile of one of the very 
small pages of the manuscript is given, containing eighteen lines, or about 
one hundred and twenty-five words. In printing the text, the editor has 
omitted a comma in the seventh line, and thereby changed, or, at least, 
obscured, the meaning of a very important and very clear passage, which 
contained the marrow of the whole treatise. Of course, such a departure 
from the letter in a weighty period destroys the confidence of critical 
readers in the edition, and the book, in a grammatical point of view, becomes 
worthless. The manuscript in question is one of the most important recent 
acquisitions to the theology of the Reformation and the early literature of 
England, and the voluntary admission of any changes in its text shows a 
want of exact scholarship in a quarter where we had the best right to 
expect it. 



84 ME. maesh's addeess. 

But for the unfortunate readiness witli wliicli 
editors and publishers have yielded to the popular 
demand for conformity to the spelling and the vocab- 
ulary of the day, the knowledge of genuine English 
would now be both more general and further 
advanced than it is. The habit of reading books as 
they were written would have kept up the compre- 
hension, if not the use, of good old forms and choice 
words, which have irrecoverably perished, and the 
English of the most vigorous period of our litera- 
ture would not now be sneered at as obsolete and 
unintelligible. 

After all, the difficulties of acquiring a familiar 
acquaintance with the dialect of the reign of 
Edward III. are extremely small. Let not the 
student be discouraged by an imperfect and irregu- 
lar orthography, or, now and then, a forgotten word, 
and a month's study will enable him to read, with 
entire readiness and pleasure, all that the genius of 
England has produced during the five centuries that 
have elapsed since English literature can be said to 
have had a being. 

I cannot, of course, here dilate upon the value of 
a familiarity with the earlier English writers, but I 
may, perhaps, be indulged in a momentary reference 
to the greatest of them, the perusal of whose works 
alone would much more than compensate the little 



MR. maesh's address. 85 

labor required to understand the dialect in wliich. 
tliey are written. Neither the prose nor the verse 
of the English literature of the fourteenth century 
comes up to the elaborate elegance and the classic 
finish of Boccaccio and of Petrarch. But, in orig- 
inal power and in all the highest qualities of poetry, 
no continental writer of that period, with the single 
exception of Dante, can, for a moment, be compared 
with Chaucer, who, only less than Shakspeare, 
deserves the epithet, mjn'iad-minded, so happily 
aj)plied by Coleridge to the great dramatist. He 
is eminently the creator of our literary dialect, the 
inventor, or, at least, the introducer, of our finest 
poetical forms, and so essential were his labors in 
the founding of our national literature, that, without 
Chaucer, the seventeenth century could have pro- 
duced no Milton, the nineteenth no Keats. It is 
through ignorance alone, that his diction and his 
versification have been condemned as rude and 
unpolished ; and, though there are some difiiculties in 
his prosody, which have not yet been fully solved, 
the general flow of his verse is scarcely inferior to 
the melody of Spenser. There can be little doubt 
that his metrical system was in perfect accordance 
with the orthoepy of his age, and it was full two 
centuries before any improvements were made upon 
his diction or his numbers. 



86 ME. maksh's address. 

I said, in tlie outset, tliat tliere were circumstances 
in tlie position and tlie external relations of tlie Eng- 
lisli language wMcli recommended its earnest study 
and cultivation. I refer, of course, to the command- 
ing political influence, the wide-spread territory, 
and tlie commercial importance of the two great 
mother-countries whose vernacular it is. Although 
England is no longer at the head of the European 
political system — a position which she justly for- 
feited when she permitted her statesmen to sacri- 
fice the cause of popular liberty upon the European 
continent — ^yet, in spite of the errors of her rulers, 
she is still the leading influence in the sphere of 
commerce, of industry, of progressive civilization, 
and of enlightened Christian philanthropy. 

The British capital is at the geographical centre 
of the terrestrious portion of the globe, and while 
other great cities represent individual nationalities, 
or restricted and temporary aims, the lasting, car- 
dinal interests of universal humanity have their 
brightest point of radiation in the city of London. 
The language of England is spoken by greater num- 
bers than any other Christian speech, and it is the 
vehicle of a wider, purer, more beneficent moral 
action than any other existing tongue. Its preva- 
lence is everywhere marked by social order, by civil 
and rehgious liberty, by general intelligence and 



ME. MAESHS ADDEESS. 87 

progressive knowledge, by enliglitened and compre- 
hensive charity; and it is remarkable that, while 
some younger languages and younger races are 
decaying and gradually disappearing from their 
natal soil, the English speech and the descendants 
of those who first employed it, are making hourly 
conquests of new territory, and have already estab- 
lished their posts within hailing distance throughout 
the circuit of the habitable globe. The English lan- 
guage is the special organ of all the great, world-wide 
charities which so honorably distinguish the present 
from all preceding ages. With little of the specu- 
lative universal philanthropy which has been so 
loudly preached and so little practiced elsewhere, 
the English people have been foremost in every 
scheme of active benevolence, and they have been 
worthily seconded by their American brethren. The 
English Bible has been scattered by hundreds of 
millions over the face of the earth, and English- 
speaking missionaries have planted their maternal 
speech at scores of important points, to which, had 
not their courageous and self-devoting energy paved 
the way, not even the enterprise of trade could have 
opened a path. Hence, English is emphatically the 
language of commerce, of civilization, of social and 
religious freedom, of progressive intelligence, and of 
active catholic philanthropy ; and, therefore, beyond 



MR. MAESh's address. 



any tongue ever used by man, it is of right tlie cos- 
mopolite speecli. 

That it will ever become, as some dream, literally 
universal in its empire, I am, indeed, far from believ- 
ing; nor do I suppose that the period will ever 
arrive, when our many-sided humanity will content 
itself with a single tongue. In the incessant change 
which all language necessarily undergoes, English 
itself will have ceased to exist, in a form identifiable 
with its present character, long before even the half of 
the human family can be so far harmonized and assimi- 
lated as to employ one common medium of inter- 
course. Languages adhere so tenaciously to their 
native soil, that, in general, they can be eradicated 
only by the extirpation of the races that speak them. 
To take a striking instance : the Celtic has less vital- 
ity, less power of resistance, than any other speech 
accessible to philological research. In its whole 
known history it has made no conquests, and it has 
been ever in a waning condition, and yet, compara- 
tively feeble as is its self-sustaining power, two 
thousand years of Roman and Teutonic triumphs 
have not stifled its accents in England- or in Gaul. It 
has died only with its dying race, and centuries may 
yet elapse before English shall be the sole speech of 
Britain itself. 

In like manner, not to speak of other sporadic 



ME. maesh's addeess. 89 

ancient dialects, the primitive language of Spain, 
after a struggle of two and twenty centuries witli 
Phoenicians, and Celts, and Carthagenians, and Grreeks, 
and Romans, and Goths, and Arabs, is still the daily 
speech of half a million of people. If, then, such be 
the persistence of language, how can we look forward 
to a period when English shall have vanquished and 
superseded the Chinese and the Tartar dialects, the 
many tongues of ^Dolyglot India, the yet-surviving 
Semitic speeches, in their wide diffusion, and the 
numerous and powerful Indo-European languages, 
which are even now disputing with it the mastery ? 
In short, the j)rospect of the final triumph of any one 
tongue is as distant, as improbable, I may add, as 
undesirable, as the subjection of univei*sal man to one 
monarchy, or the conformity of his multitudinous 
races to one standard of color, one physical type. 
The Author of our being has implanted in us our 
discrepant tendencies, for wise purposes, and they 
are, indeed, a part of the law of life itself. Diversity 
of growth is a condition of organic existence, and so 
long as man possesses powers of spontaneous develop- 
ment and action, so long as he is more and better than 
a machine, so long he will continue to manifest out- 
ward and inward differences, unlikeness of form, antag- 
onism of opinion, and varieties of speech. But yet, 
though English will not supersede, still less extirpate, 



90 MR. MAESH^S ADDEESS. 

the thousand languages now spoken, it is not unrea- 
sonable to expect for it a wider diffusion, a more 
commanding influence, a more universally-acknowl- 
edged beneficent action, tlian has yet been reached, 
or can hereafter be acquired, by any ancient or now- 
existent tongue, and we may hope that the great 
names which adorn it will enjoy a wider and more 
durable renown than any others of the sons of man. 

These brief remarks do but hint the importance 
of the studies I am advocating, and it will be the 
leading object of my future discourses more fully to 
expound their claims, and to point out the best 
method of pursuing them. 

A series of lessons upon the technicalities of Eng- 
lish philology would, it is thought, be premature, 
and, moreover, adequate time and means for the 
execution of an undertaking, involving so vast an 
amount of toil, have not yet been given. That must 
be the work, if not of another laborer, at least, of 
other years, and our present readings must be 
regarded only as a collection of observations upon 
the principles of articulate language, as exemplified 
in the phonology, vocabulary, and syntax of Enghsh; 
or, in other words, as a course ])re]paratory to a 
course of lectures on the English tongue. Such as 
I desci'ibe the course, too, I shall endeavor to make 
each individual lecture, namely, a somewhat informal 



ME. maesh's addeess. 91 

presentation of some one or more philological laws, 
or general facts, in tlieii' connection with, the essen- 
tial character, or historical fortunes, of our own 
speech. 

I will not dilate on the dijficulties attending the 
preparation of so extensive a coui'se, in a few weeks 
of often-interrupted labor, without access to large, or 
specially-selected, libraries, and, in fact, almost 
wholly without appropriate aids and aj)pliances — 
difficulties which, duly weighed, would rather pro- 
voke your censure of the speaker for undertaking 
a task so much beyond his forces and his means, 
than conciliate your indulgence for his imperfect 
execution of it; but, I must be pardoned for 
acknowledging what it will be no exaggeration to 
call my perplexity, in determining upon the extent 
to which the course ought to assume a scientific or a 
popular form. The lectures are, under the circum- 
stances, essentially experimental, the character and 
tastes of the small audiences, I was encouraged to ex- 
pect, uncertain; but the necessities of the case have 
decided the question for me, and, as in many other 
instances, where external conditions control our 
action, in a way which my own judgment would 
probably have approved. 

The preparation of a series- of thoroughly-scientific 

discourses upon the English tongue, within the time 

1 



92 ME. 

and witli the means at my command, was impossible, 
and the attempt could only have resulted in a discred- 
itable failure. I, therefore, adopted the plan I have 
described, as the only practicable course, and, not 
improbably, also the best. This point being disposed 
of, there remained only the embarrassment arising 
from the uncertainty of the amount of philological 
attainment generally possessed by my audience. I 
have thought myself authorized to presume that, 
however few in numbers, it would embrace persons 
somewhat widely-separated in degree of culture, and 
as I desire to make my discourses, so far as it lies in 
my power, acceptable, if not instructive, to all, I shall 
ask the scholar sometimes to pardon familiar, even 
trite, statements of principle, illustrations which can 
scarcely claim to be other than trivial, and repeti- 
tions which clearness and strength of impression may 
render necessary for some, while I shall hope the less 
advanced will excuse me when I indulge in s^^ecula- 
tions addressed to those to whom long study has 
rendered recondite doctrine more intelligible. In 
the main, I shall address you as persons of liberal 
culture, prepared, by general philological education, 
to comprehend linguistic illustrations drawn from all 
not widely-remote and unfamiliar sources, but who, 
from unexcited curiosity, or the superior attractions 
and supposed claims of other knowledges, have not 



93 



made the English, language a matter of particular 
study, thought, or observation; and such I shall hope 
to convince that the subject is possessed of sufficient 
worth and sufficient interest to deserve increased 
attention, as a branch of American education. 



X101 






<j5 °-^ ' 










*bv^ 









••:??f^-'o^' 'V^^^'\^^^' V'^^'V^'' V^^'^'\< 
\./ ,*^$^^o "^^.^^ /.^^ V..^'' _*^^Va\ ^^,^^ , 

















•^0^ 

.■^"1 













'^ aV 








'tis 'o.T* A <. *?!^VT* .0^ 'o, 'o.»* A <. 

A^ ^?> ''^ *V^ *^vf. *«""> A° ^s> *^»'^* .^^ 



=^-..<^'' 










oTo-/ X/^f^-'J' V'^'^'V^'*' '\^^^'^^\^^ 






